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THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 
LOS  ANGELES 


INSANITY 


% 


CONSIDERED   IN    ITS 


MEDICO-LEGAL  RELATIONS. 


"ORNARI   RES   IP&A   NEGAT,  CONTENTA   DOCERI." 


BY 

T.  R.  BUCKHAM,  A.M.,  M.D. 


PHILADELPHIA: 

J.   B.   LIPPINCOTT    &    CO. 

LONDON:   16  SOUTHAMPTON  STREET,  STRAND. 
18  8  3. 


Copyright,  1883,  by  J.  B.  Lippincott  &  Co. 


TO    THE 

HONORABLE   THOMAS   M.  COOLEY,  LL.D., 

ETC.,  ETC.,  ETC., 

ASSOCIATE     JUSTICE 

OP    THE 

SUPEEME  COTJET  OF  MICHIGAN, 

WHOSE    ERUDITION   AND   ABILITIES    HAVE    ADORNED   THE   LEGAL    PROFESSION   OP 
THIS    COUNTRY, 

THIS     ^V^ORK, 

WITH    GRATEFUL   ACKNOWLEDGMENT   OF   IMPORTANT   AID    IN   THE 

PREPARATION   OP    THE    LEGAL   SECTIONS, 

IS,    AVITH    HIS   PERMISSION, 

KESPECTFULLY  DEDICATED 
BY  THE  AUTHOR. 


PREFACE. 


In  preparing  this  work  for  the  public  the  chief 
objects  in  view  were  to  point  out  the  pernicious 
uncertainty  of  verdicts  in  insanity  trials,  with  the 
hope  that  by  arousing  attention  to  the  magnitude 
of  the  evil,  at  least,  some  of  the  more  objectionable 
features  of  our  medical  jurisprudence  may  be  re- 
moved; to  faithfully  call  attention  to  the  more 
prominent  causes  of  that  uncertainty;  "to 'hold  as 
'twere  the  mirror  up  to  nature ;  to  show  virtue  her 
own  feature,  scorn  her  own  image;"  and,  with  the 
most  friendly  feelings  for  both  my  own  and  the  legal 
profession,  to  criticise  severely,  and  to  censure  when 
necessary,  not  the  individuals,  but  the  system  which 
has  made  insanity  trials  a  reproach  to  courts,  lawyers, 
and  the  medical  profession.  My  intention  at  the  first 
was  to  prove  every  proposition  introduced  ab  initio, 
but  afte*  carrying  out  the  intention  for  some  time,  I 
found  I  had  written  over  seven  hundred  pages,  and 
had  not  then  fairly  commenced  the  discussion  of  the 
points  particularly  contemplated ;  and,  believing  that 


6  PEEFACE. 

few  readers  would  be  content  to  toil  throngli  so  many- 
pages  of  preliminary  matter;  and,  that  in  place  of 
one  small  volume,  tliere  would  be  several  large  ones ; 
that  part  of  my  plan  was  abandoned,  and  instead  I 
have  laid  the  conclusions  of  standard  writers  under 
large  contribution,  with  just  enough  of  the  authors' 
reasoning  to  give  them  coherence,  referring  in  every 
case  to  the  work  quoted,  so  that  my  readers  may 
investigate  the  subject  more  fully  if  they  so  desire. 
By  the  aid  of  the  "physical  medid!^  theory  here 
introduced,  and,  I  think  fully  established,  by  abolish- 
ing legal  tests  of  insanity  so  called,  and  by  securing 
efficient,  trustworthy  expert  testimony  in  every  trial, 
through  the  scheme  herein  proposed,  it  is  believed 
that  the  disgraceful,  haj)hazard  trials  of  the  past, 
and  present,  will  give  place  in  the  future,  to  trials 
as  orderly,  and  in  which  verdicts  will  be  regarded 
as  certain  and  trustworthy,  as  those  in  any  other 
class  of  cases  brought  before  the  courts.  The  work 
being  designed  for  members  of  the  legal,  as  well 
as  of  the  medical  profession,  the  use  of  technicalities, 
psychical,  metaphysical,  and  medical,  has  been  stu- 
diously avoided. 

THE  AUTHOK. 

Flint,  Mich.,  1883. 


CONTENTS. 


CHAPTER   I. 


INTRODUCTORY. 

FAQK 

Uncertainty  of  Verdicts  in  Insanity  Trials — Aim  and  Scope  of 
this  Work — Causes  of  Uncertainty — Insanity  not  understood 
— Definitions  of  Insanity — Legal  Tests  and  Definitions — Con- 
tradictory Opinions  of  Judges — Improper  Use  of  the  Term 
"Expert" — Taylor's  "  Ordinary  Rule  of  Society"  Test  exam- 
ined— Conclusion  reached — Illustration,  the  Eucharist — Gen- 
eral Conclusion  reached  that,  "  no  Unreasonableness  of  Belief, 
nor  Extravagance  in  Behavior  is  alone  Conclusive  Evidence  of 
Insanity" 13 


CHAPTER   II. 

"physical  media  theory"  introduced  and  discussed  with 

THE   "  psychical"    OR  "  METAPHYSICAL"   THEORY. 

Crime  cannot  be  committed  unless  there  is  a  Mind  to  will  and  a 
Body  to  execute — Medical  Jurisprudence  has  nothing  to  do 
with  either  Mind  or  Body  if  separated — What  is  Mind  ? — No 
Direct  or  Primary  Evidence  of  the  Existence  of  Mind — Impor- 
tance of  the  Body — Sensations — Diseased  Organs  produce  Dis- 
ordered Sensations — Diseased  Organs  of  Transmission  produce 
Distorted  Mental  Manifestations — Distorted  or  Abnormal  Men- 

7 


8  CONTENTS. 

PASS 

tal  Manifestations  are  called  Diseases  of  the  Mind,  Insanity — 
No  Proof  that  the  Mind  is  ever  diseased — IMedication  of  the 
Insane  irrational  if  the  Disease  is  Mental — Definition  of  Dis- 
ease— Partial  Insanity  impossible  according  to  the  Psychical 
Theory — Insanity  does  not  prove  that  it  is  the  Mind  that  is 
diseased — Evidence  in  favor  of  the  "  Physical  Media  Theory" 
from  the  Physical  Expression  of  Mental  Emotions — The 
Mental  Manifestations  in  Diseases  (Fevers,  Inflammation  of 
the  Brain,  etc.) — Insane  Delusions  induced  and  removed  at 
will  by  Medicines — Post-Mortem  Disclosures — Cases  reported 
— Evidence  from  Small  Brains— Brain  the  Organ  of  Mind — 
All  Experts  believe  Insanity  to  be  a  Physical  Disease — Evi- 
dence from  Insane  Asylums — Conclusions  reached — Definition 
of  Insanity — Corollary 35 


CHAPTER    III. 

THE   SOMATIC   THEORY. 

In  considering  Insanity  a  Physical  Disease  the  "  Somatic  and 
Physical  Media  Theories"  are  in  Accord — Important  Points 
of  Difi'erence  between  the  Theories — Mind  not  necessarily  a 
Brain  Function,  because  it  is  obliged  to  use  the  Brain  in  its 
Manifestations — Which  is  Precedent  and  which  Consequent — 
Somatists  deny  the  Existence  of  Free  Will— Heredity  deter- 
mines irresistibly  the  Character — Cannot  even  will  against  it 
— There  can  be  no  Crime  where  there  is  no  Free  Will — If  the 
Effect  of  Hereditary  Neuroses,  Crime  is  not  Guilt  to  the  Per- 
petrator— Heredity  considered — Efforts  to  obtain  Trustworthy 
Data— Heredity  supported  by  the  "Evolution  Theory" — Evo- 
lution Theory  defective — Defects  considered — Physical  Devel- 
opment of  Thought  Hypothesis  examined — Scientific  Demon- 
stv.itions  not  always  Trustworthy — Conclusions  reached  .         .     73 


CONTENTS.  9 

CHAPTER    IV. 

THE   INTERMEDIATE   THEORY. 

PAQE 

What  Messrs.  Wharton  and  Still6  claim  for  it — A  Theory  must  be 
established  to  have  any  Authority — Claims  of  the  "Interme- 
diate" to  be  regarded  as  a  Theory  considered — Want  of  Clear- 
ness and  Precision  of  Language  deprecated — Definition  of 
" Theory"  and  " Hypothesis" — Designation  "Intermediate"  a 
Misnomer — Physical  Origin  and  Growth  of  Mental  Disease 
considered — System  of  Therapeutics — Obviation  of  Difficulties 
by  "  Intermediate"  considered — Position  assumed  by  Messrs. 
Wharton  and  Still6  considered — Legal  Testa  cannot  define  or 
determine  Physical  Diseases — Conclusion         .         .         .         .89 

CHAPTER    V. 

EXPERTS. 

Definition  of  Experts  in  Insanity — General  Medical  Practitioners 
are  not  Experts  in  Insanity — Non-Experts  ought  not  to  bo 
allowed  to  give  Evidence  as  Experts — Result  pernicious  when 
so  allowed — Precedent — Many  Legal  "Precedents"  discarded 
Medical  Opinions — Importance  of  studying  the  Reasons  which 
underlie  Judicial  Decisions — Conflict  between  Expert  Opinions 
and  Legal  Tests — The  Question  of  Responsibility  considered — 
Crime  cannot  be  committed  by  an  Insane  Person — Insanity  a 
Question  of  Fact  for  the  Jury,  not  of  Law  for  the  Judges — 
Only  Experts  can  diagnose  Insanity — Hypothetical  Cases — 
How  prepared — Want  of  Opportunity  and  Skilled  Observation 
— Prepared  by  Interested  Parties — Deceptive  and  Untrustwor- 
thy— Alleged  Insane  Prisoners  should  be  sent  to  Insane  Asy- 
lums, and  Superintendents  after  Examination  should  depose 
directly  to  the  Question  of  Insanity — Sanity  or  Insanity  of 
Testators — Guiteau    Trial — Responsibility    already    fixed    by 


10  CONTENTS. 


FAQE 


Law — Necessity  for  Amendments  in  the  Law — Judges'  Ke- 
sponsibility — Experts'  Irresponsibility — Remedy — Insane  Pris- 
ons should  be  provided — Scheme  for  securing  Responsible, 
Trustworthy  Experts — Benefits  that  would  accrue — Contra- 
dictory Legal  and  Expert  Tests  of  Insanity  cannot  both  be 
correct — Judges  v.  Judges — No  settled  Legal  Criteria  of  In- 
sanity— Criminal  Legal  Tests,  if  applied,  would  turn  Thou- 
sands of  Lunatics  loose  from  Insane  Asylums — Mode  of  ex- 
amining Expert  Witnesses  criticised — Probate  Insanity  Trials 
— Important  Discoveries  and  Improvements  hindered  by^Ex- 
cessive  Fear  of  Innovation — Harvey,  Jenner,  Simpson — Quali- 
fication of  Experts — Medical  Profession — Responsibility  and 
Services — Brothers,  Expert  and  Judge — Official  Reconciliation 
of  Conflicting  Expert  Opinions — "  American  Medical  Associa- 
tion"— Vexed  Questions  settled — "Association  of  Medical 
Superintendents  of  American  Institutions  for  the  Insane" — 
Experts  worthy  of  Trust — Conclusions 120 


APPENDIX. 

judges'  opinions. 

(The  figures  refer  to  the  section.) 

"Wild-Beast  Test" — Absolute  Alienation  of  Reason  Necessary, 
72 — Insanity  no  Bar  to  Responsibility,  must  be  punished  as 
a  Warning  to  Others — Punishment  of  the  Insane  against 
Law,  of  Extreme  Inhumanity,  and  is  no  Warning  to  Others, 
73_<' Right  and  Wrong"  Test  affirmed,  74— Last  Opinion 
declared  to  be  of  Exquisite  Inhumanity,  Absurd,  and  Im- 
practicable, 75 — Total  Insanity  precludes  a  Trial,  Insanity 
regarding  the  Particular  Act  sufficient — The  Test  lies  in  the 
Word  "  Power,"  had  he  Power  to  think  and  act  rightly?  76 — 
Did  he  know  that  the  Act  was  forbidden  by  the  Law? — An 
Offence  against  the  Laws  of  God  and  Nature — Burden  of  Proof 


CONTENTS.  11 


FAOH 


on  the  Accused,  and  must  be  unquestiontible,  and  Alienation 
absolute,  77 — Must  know  that  he  was  doing  Wrong  in  the  Act 
in  Question — Must  know  that  he  was  doing  Wrong  in  the  Act 
in  Question  and  at  the  Time,  78 — The  Law  does  not  recognize 
"Uncontrollable  Impulse" — "Uncontrollable  Impulse"  no  De- 
fence, 79 — Uncontrollable  Impulse  a  Good  Defence — Under 
"  Uncontrollable  Impulse"  the  Act  was  not  his  Act,  and  he  is 
not  Guilty,  80 — "Moral  Insanity"  relieves  from  Responsibility, 
81 — "Moral  Insanity"  affords  no  Relief  from  Responsibility — 
"Moral  Insanity"  does  not  relieve  from  Responsibility,  82 — 
Proof  of  Insanity  rests  on  the  Prisoner,  if  in  doubt  the  Jury 
ought  to  convict — The  Proof  of  Insanity  to  acquit  ought  to  be 
as  strong  as  of  Guilt  to  convict,  83 — The  State  must  prove  San- 
ity as  well  as  Guilt — After  the  Presumption  of  Sanity  has  been 
removed  the  State  must  prove  Sanity  as  well  as  Guilt,  84 — 
Preponderance  of  Evidence  of  Insanity  ought  to  acquit,  85 — A 
Reasonable  Doubt  as  to  Sanity  ought  to  acquit — A  Doubt 
whether  the  killing  was  the  result  of  Mental  Disease  ought 
to  acquit,  86 — Whether  there  is  such  a  Disease  (Dipsomania), 
and  whether  the  Prisoner  had  it,  are  Questions  of  Fact,  not  of 
Law — When  the  Expert  testifies  to  one  Test  of  Insanity  and 
the  Judge  gives  another,  either  the  Expert  testifies  to  a  Ques- 
tion of  Law  or  the  Judge  to  a  Matter  of  Fact — All  Symptoms 
and  all  Tests  of  Mental  Disease  are  Matters  of  Fact  for  the 
Jury,  87 — Medical  Theories  of  Insanity  arise  from  the  Vicious 
Principle  of  considering  Insanity  a  Disease,  88 — Lawyers  are 
profoundly  ignorant  of,  and  Medical  Superintendents  know,  all 
that  is  known  of  Mental  Diseases,  89 — Medical  Expert  Testi- 
mony of  no  Value — Medical  Testimony  not  only  valueless,  but 
worse  than  that,  90 — Medical  Experts  much  better  acquainted 
with  Insanity  than  either  Courts  or  Lawyers — Medical  Expert 
Opinions  Competent  Evidence  and  entitled  to  Great  Respect, 
91 221 


MEDICO-LEGAL  RELATIOxNS  OF  INSANITY. 


CHAPTER    I. 

INTEODUCTOEY. 

Uncertainty  of  Verdicts  in  Insanity  Trials — Aim  and  Scope  of  this 
Work — Causes  of  Uncertainty — Insanity  not  understood — Defini- 
tions of  Insanity — Legal  Tests  and  Definitions — Contradictory 
Opinions  of  Judges — Improper  Use  of  the  Term  "  Expert" — Tay- 
lor's "  Ordinary  Rule  of  Society"  Test  examined — Conclusion 
reached — Illustration,  the  Eucharist — General  Conclusion  reached 
that,  "  no  Unreasonableness  of  Belief,  nor  Extravagance  in  Be- 
havior is  alone  Conclusive  Evidence  of  Insanity." 

• 

§  1.  That  a  feeling  of  profound  and  general  dis- 
trust prevails  with  reference  to  legal  decisions  in  all 
cases  in  which  insanity  is  an  element  of  the  trial,  is 
an  under-statement  of  the  fact.  One  of  the  ablest 
medico-forensic  writers^  states :  "  It  is  notorious  that 
the  acquittal  or  conviction  of  a  prisoner  when  in- 
sanity is  alleged  is  a  matter  of  chance.  Were  the 
issue  to  be  decided  by  tossing  up  a  shilling,  instead 
of  by  the  grave  procedure  of  a  trial  in  court,  it  could 


^  Mandsley,  Responsibility  in  Mental  Diseases,  p.  101. 

13 


14  MEDICO-LEGAL   EELATIONS   OF   Ilf SANITY. 

hardly  be  more  uncertain.  The  less  insane  person 
sometimes  escapes,  while  the  more  insane  person  is 
sometimes  hanged;  one  man  laboring  under  a  par- 
ticular form  of  derangement  is  acquitted  at  one  trial, 
while  another  having  an  exactly  similar  form  of 
derangement,  is  convicted  at  another  trial." 

Another  eminent  medical  jurist,^  an  acknowledged 
authority,  both  in  this  country  and  in  Britain,  says : 
..."  acquittal  on  the  plea  of  insanity  is,  on  some 
occasions,  a  mere  matter  of  accidentr  "  Either 
some  persons  are  improperly  acquitted  on  the  plea 
of  insanity,  or  others  are  unjustly  executed;"^  and, 
unfortunately,  the  facts,  on  a  careful  examination 
of  the  subject,  fully  corroborate  this  severe  arraign- 
ment of  the  jurisprudence  of  insanity.  Is  not  the 
travesty  of  justice  shocking?  Guilty  persons  ac- 
quitted and  innocent  persons  hanged  in  the  sacred 
name  of  justice,  after  an  intended  impartial  legal 
trial !  The  thought  is  appalling,  and  the  magnitude 
of  the  evil  cannot  easily  be  exaggerated.  Inde- 
pendent of  the  injustice  to  individuals  and  to  society, 
possibly  no  greater  calamity  can  befall  a  nation  than 
to  lose  confidence  in  the  judiciary  thereof. 

1  Taylor,  Med.  Juris.,  vol.  ii.  p.  589.    .  ^  Ibid.,  p.  580. 


IliTTEODUCTOKY.  15 

Apart  from  "  insanity  trials,"  our  judicial  decisions 
give  very  general  satisfaction,  and  are  received  with 
confidence  by  the  people.  The  probity  and  ability 
of  our  judges  have  rarely  been  challenged.  The 
ability  of  the  bar  of  this  country  is  unquestioned,  and 
from  no  people  can  more  intelligent  and  trustworthy 
jurors  be  drawn  than  from  American  citizens.  Pos- 
sessing unimpeachable  judges,  able  lawyers,  and  in- 
telhgent  jurors,  all  the  elements  of  eminently  reliable 
courts,  why  is  it  that  verdicts  in  a  large  class  of  cases 
are  not  at  all  to  be  depended  upon — are  so  uncertain 
that  they  command  neither  the  respect  nor  confidence 
of  the  people,  and  are  therefore  shorn  of  the  moral 
force  and  influence  that  properly  appertain  to  judg- 
ments of  courts? 

§  2.  That  such  uncertainty  of  verdict  exists,  or  is 
possible,  postulates  some  grave  error  or  defect  in  the 
judicial  proceedings,  and  consequently  the  interests 
of  society,  of  the  judiciary,  and.  of  all  persons  con- 
nected with  insanity  trials  demand  a  searching  inves- 
tigation, to  discover  if  possible  the  cause  or  causes, 
the  persons  or  classes,  responsible  for  the  miscarriage 
of  justice,  and  to  devise  such  remedies  as,  properly 
applied,  will  insure  reasonable  certainty  of  true  ver- 
dicts in  all  insanity  cases,  "  a  consummation  devoutly 


16  MEDICO-LEGAL    KELATIOISTS    OF    INSANITY. 

to  be  wished,"  wliicli,  if  obtained,  would  render  life 
and  liberty  more  secure,  and  erase  the  foul  blot  that 
mars  the  otherwise  fair  record  of  our  judicial  pro- 
ceedings.    Such  is  the  task  undertaken  by  the  writer. 

§  3.  Doubtless,  underlying  the  whole  subject  of  the 
jurisprudence  of  insanity,  as  a  potent  cause  of  the 
uncertainty  of  verdicts,  is  the  fact  that  the  real  prem- 
ises are  imperfectly  understood.  At  every  trial  the 
question,  "What  is  insanity?"  is  reiterated,  and  no 
definition  has  yet  been  furnished  that  commands  gen- 
eral credence  and  acceptance.  The  oj)inions  of  the 
courts,  as  expressed  in  their  rulings  and  charges  to 
juries,  are  contradictory  one  of  another,  and  physi- 
cians called  to  testify  as  experts  exhibit  in  their  evi- 
dence anything  but  uniformity  of  oj^inion.  What  do 
authorities  say  as  to  this  ? 

§  4.  Webster  defines  insanity  as  "  the  state  of  being 
insane ;  unsoundness  of  mind  ;  derangement  of  intel- 
lect; madness."  Worcester,  as  "the  state  of  being 
insane ;  lunacy  ;  mania  ;  Avant  of  sound  mind ;  mad- 
ness; delirium."  These  authorities  do  not  help  us, 
as,  according  to  them,  insanity  is  a  want  of  sound 
mind,  madness,  lunacy,  mania,  and  delirium ;  and 
what  are  delirium,  mania,  lunacy,  madness,  and  want 
of  sound  mind?     Insanity,  of  course.     Lexicogra- 


INTEODUCTOKY.  17 

phers  afford  us  no  aid.  We  sliall  now  consult  meta- 
physicians, psychologists,  and  medical  jurists.  Locke 
defines  a  madman  to  be  "  one  who  reasons  correctly 
from  false  premises."  Cullen  defines  insanity  to  be 
"  a  lesion  of  the  intellectual  faculties,  without  pyrexia, 
and  without  coma."  Abernethy,  as  "  the  loss  of  the 
faculty  of  attention."  Combe  says,  "  It  is  a  prolonged 
departure,  and  without  an  adequate  external  cause^ 
from  the  state  of  feeling  and  modes  of  thinking  usual 
to  the  individual  who  is  in  health ;  that  is  the  true 
feature  of  disorder  of  the  mind."  And  the  same  writer 
gives  another  definition,  in  which  he  characterizes 
insanity  as  "  a  morbid  action  in  one,  in  several,  or  in 
the  whole  of  the  cerebral  organs,  and,  as  its  necessary 
consequence,  functional  derangement  in  one,  in  sev- 
eral, or  in  the  whole  of  the  mental  faculties  which 
these  organs  subserve."  Connoly,  "a  disorder  of  the- 
power  of  comparison  or  judgment."  Guislam,  "a 
derangement  of  the  mental  faculties,  morbid,  apy- 
rexial,  and  chronic,  which  deprive  man  of  the  power 
of  thinking  and  acting  freely  as  regards  his  happi- 
ness, preservation,  and  responsibihty."  Lelut,  "a 
lesion  in  the  association  of  ideas."  Marc,  "the  loss 
of  the  faculty  of  volition."  Morel,  "  a  cerebral  affec- 
tion, idiopathic   or   sympathetic,  destroying  the  in- 


18         MEDICO-LEGAL   EELATIONS   OF   INSAJTITY. 

dividual's  moral  liberty,  and  constituting  a  derange- 
ment of  his  acts,  tendencies,  and  sentiments,  as  well 
as  a  general  or  partial  disorder  of  his  ideas."  Cop- 
land, "  a  deviation  from,  or  perversion  of,  the  natural 
or  healthy  state  of  the  mind,  as  manifested  either  by 
the  moral  emotions  and  conduct,  or  by  a  partial  or 
general  disorder  of  the  intellectual  powers  and  under- 
standing." Taylor  says,^  "  The  terms  insanity, 
lunacy,  unsoundness  of  mind,  mental  derangement, 
mental  disorder,  madness,  and  mental  alienation  or 
aberration  have  been  indifferently  applied  to  those 
states  of  disordered  mind  in  which  a  person  loses  the 
power  of  regulating  his  actions  and  conduct  according 
to  the  ordinary  rules  of  society."  Definitions  and 
criteria  of  insanity  might  be  quoted  almost  indefi- 
nitely, as  the  number  is  limited  only  by  the  number 
of  writers  on  the  subject,  but  enough  have  been  re- 
ferred to  to  show  that  there  is  none  that  commands 
general  assent,  because  had  one  been  found  wholly 
trustworthy,  all  others  would  have  been  discarded. 

§  5.  Let  us  now  turn  to  the  law.  It  has  to  deal 
officially  with  insanity.  What  settled  tests  or  well- 
defined  criteria  have  the  courts  which  may  be  invoked 

1  Med.  Juris.,  vol.  ii.  p.  476. 


IXTEODUCTOEY.  19 

in  determining  responsibility  where  insanity  is  alleged 
as  a  defence,  or  bar  to  punishment  for  crime  com- 
mitted? Unfortunately,  an  examination  of  "judges' 
opinions"  proves  that  what  has  been  shown  to  be  con- 
cision among  psychical  authorities  is,  with  the  added 
contradictory  rulings  of  the  courts,  "  confusion  worse 
confounded." 

Giving  in  a  few  words  or  sentences  the  following 
legal  tests  or  criteria  of  insanity,  it  will  be  impossible 
in  every,  or  indeed  in  any,  case  to  convey  the  exact 
shade  of  thought,  with  the  nice  distinctions,  as  ex- 
pressed by  the  learned  judges  in  their  elaborate  opin- 
ions. To  guard,  however,  against  even  the  appear- 
ance of  misrepresentation,  reference  will  be  made  to 
the  Appendix  "Judges'  Opinions,"^  giving  in  every 
case  the  section,  and  name  of  the  judge  whose  opinion 
is  epitomized. 

"  General  insanity  would  necessarily  preclude  a 
trial,  as  a  person  in  that  condition  can  make  no  de- 
fence whatever."     Beardsley,  C.  J.,  §  76. 

"  That  you  are  of  unsound  mind  I  believe,  but  that 
is  no  reason  why  you  should  not  be  punished,  as  an 
example  to  others."     Bramwell,  B.,  §  73. 

^  Vide  Appendix,  pp.  221-250. 


20         MEDICO-LEGAL   KELATIONS   OF   INSANITY. 

"  To  execute  an  insane  person  is  against  law,  and 
of  extreme  inhumanity  and  cruelty,  and  can  be  no 
warning  to  others."     Sir  Edward  Coke,  §  73. 

To  relieve  from  responsibility,  insanity  must  be 
absolute ;  a  man  must  know  no  more  than  an  infant, 
a  brute,  or  wild  beast.     Trac}^,  J.,  §  72. 

Absolute  insanity  not  necessary;  if  the  prisoner 
was  insane  ivith  reference  to  the  crime  charged,  it 
is  suflScient.     Beardsley,  C.  J.,  §  76. 

It  must  be  clearly  shown  that  the  accused  did  not 
know  right  from  wrong.  Partial  insanity  no  bar  to 
responsibility.     English  Judges  in  Conference,  §  74. 

The  preceding  opinion  designated  "  exquisitely  in- 
humane" and  absurdly  impracticable.    Ladd,  J.,  §  75. 

"The  test  lies  in  the  word  'power.'  Had  the 
accused  power  to  know  right  from  wrong,  and  had 
he  j)ower  to  adhere  to  the  former  and  avoid  the 
latter?"     Brewster,  J.,  §  76. 

The  law  does  not  recoo;nize  "uncontrollable  im- 
pulse"  if  the  prisoner  knew  right  from  wrong.  Al- 
derson,  B.,  §  79. 

There  is  an  uncontrollable  impulse,  or  irresistible 
inclination  to  kill,  which,  when  proved,  relieves  from 
res^Donsibility.     Gibson,  C.  J.,  §  80. 

"  If  he  knew  that  he  was  committing  an  act  against 


INTKODUCTOEY.  21 

God  and  nature,  lie  is  responsible."  Lord  Lynd- 
liurst,  §  77. 

"  If  the  person  acted  under  uncontrollable  impulse, 
notwithstanding  his  knowledge,  the  act  was  not  his 
act ;  hence  he  is  not  responsible."     Shaw,  C.  J.,  §  80. 

"Moral  insanity"  affirmed  to  be  held  a  good  de- 
fence by  all  enlightened  jurists.     Robertson,  J.,  §  81. 

"  Moral  insanity"  denied  as  being  a  good  defence, 
and  the  opinion  that  it  was,  declared  to  be  a  most 
startling,  irresponsible,  and  dangerous  doctrine,  un- 
known to  the  courts  of  last  resort  in  either  Britain  or 
this  country.     Williams,  C.  J.,  §  82. 

If  he  did  not  know  that  the  act  he  was  doing  was 
wrong,  he  is  not  responsible.     Tindal,  C.  J.,  §  78. 

If  he  knew  that  the  act  was  wrong  at  the  time  he 
committed  the  deed,  he  is  responsible.  Parke,  B., 
§78. 

"The  defence  must  prove  absolute  alienation  be- 
yond all  doubt,  such  insanity  as  would  prevent  the 
accused  from  knowing  that  murder  was  a  crime 
against  the  laws  of  God  and  nature,  and  '  that  there 
ivas  no  other  proof  of  insanity  which  would  excuse 
murder  or  any  other  crimeJ  "  Sir  James  Mansfield, 
§77. 

An  insane  man  cannot  commit  a  crime.     If  there 


22         MEDICO-LEGAL   EELATIONS   OF   INSAIflTY. 

is  a  doubt  of  the  insanity,  how  can  the  jury  say  a 
sane  man  committed  the  crime  ?  A  reasonable  doubt 
as  to  insanity  should  avail  as  much  as  a  doubt  of  any 
matter  of  fact.     Crawford,  J.,  §  86. 

The  onus  of  proving  insanity  is  on  the  accused, 
and  if  left  in  doubt,  the  jury  should  convict.  Rolph, 
B.,  §  83. 

The  onus  of  proof  of  insanity,  as  well  as  of  guilt, 
rests  on  the  state  after  the  presumption  of  sanity  has 
been  removed  by  the  defence.     Cooley,  C.  J.,  §  84. 

The  proof  of  insanity  to  acquit  should  be  as 
strong  as  the  proof  of  guilt  to  convict.  Hornblower, 
C.  J.,  §  83. 

If  the  jury  entertain  a  reasonable  doubt  of  in- 
sanity, they  ought  to  acquit.     Doe,  J.,  §  86. 

A  prepojiderance  of  evidence  in  favor  of  insanity 
should  acquit.     Shaw,  C.  J.,  §  S5. 

Whether  there  is  such  a  mental  disease  (dipso- 
mania) is  a  matter  of  science  and  of  fact,  not  of  law. 
Smith,  C.  J.,  §  87. 

If  he  knew  that  the  act  was  a  crime  forbidden  by 
the  law,  he  was  responsible.     Lord  Brougham,  §  77. 

There  are  no  legal  tests  of  insanity.  When  the 
judge  gives  a  legal  test  of  insanity,  he  either  testifies 
to  a  question  of  fact,  or  the  expert  witness  has  testi- 


INTEODUCTORY.  23 

fied  to  a  question  of  law.  Thus  the  law  is  brought 
into  conflict  with  itself.     Doe,  J.,  §  87. 

The  introduction  of  medical  opinions  and  theories 
in  the  subject  of  insanity  has  proceeded  up)on  the 
vicious  principle  of  considering  insanity  a  disease. 
Lord  Chancellor  Westbury,  §  88. 

Judges  and  lawyers,  profoundly  ignorant  of  in- 
sanity, have  invaded  the  province  of  medical  experts, 
the  province  of  those  who  know  all  that  is  known  on 
the  subject,  and  for  legal  tests  use  exploded  obsolete 
medical  theories.     Doe,  J.,  §  89. 

Ordinary  men  of  the  world  just  as  competent  as 
witnesses  as  medical  experts  in  insanity  cases.  Bram- 
well,  B.,  §  90. 

Medical  experts  are  infinitely  better  qualified  to 
judge  of  insanity  than  are  courts  or  lawyers.  Ladd, 
J.,  §  91. 

Expert  testimony  not  only  of  no  value,  but  worse 
than  that.     Davis,  J.,  §  90. 

Expert  testimony  of  great  weight,  and  deserves 
the  respectful  consideration  of  the  jury  as  competent 
evidence.     Shaw,  C.  J.,  §  91. 

The  whole  difiiculty  is  that  courts  have  under- 
taken to  declare  that  to  be  law  which  is  a  matter  of 
fact.     All  symptoms  and  all  tests  of  mental  disease 


24         MEDICO-LEGAL   EELATIONS   OF   INSANITY. 

are  purely  matters  of  fact  for  tlie  jury,  and  not  mat- 
ters of  law  for  the  judge.     Doe,  J.,  §  87. 

§  6.  In  the  foregoing  comparatively  few  utterances 
of  the  courts,  what  phase  or  degree  of  insanity,  as  re- 
lieving the  individual  from  responsibility,  has  not 
been  authoritatively  affirmed  and  authoritatively  de- 
nied ?  An  insane  person  cannot  be  tried  for  crime ; 
insanity  must  be  absolute ;  partial  insanity  sufficient ; 
the  insane  must  be  punished  as  a  warning  to  others ; 
punishing  an  insane  person  extremely  cruel  and  in- 
humane, and  no  warning  to  others ;  must  know  right 
from  wrong;  must  know  right  from  wrong  at  the 
time  ;  must  know  right  from  wrong  at  the  time,  and 
that  the  act  charged  loas  wrong ;  insanity  must  be 
proved  beyond  a  doubt ;  a  preponderance  of  proof  of 
insanity  sufficient ;  if  any  reasonable  doubt  of  insanity 
exists,  acquit ;  the  onus  of  proof  of  insanity  on  the 
defence ;  the  onus  of  proof  on  the  State ;  medical 
opinions  and  theories  in  insanity  cases  are  vicious ; 
medical  experts  know  all  that  is  known  on  the  sub- 
ject ;  judges  and  lawyers  j)rofoundly  ignorant  of  in- 
sanity ;  expert  testimony  of  high  value ;  expert  testi- 
mony worse  than  valueless ;  and  last,  but  not  least, 
there  are  no  legal  tests  of  insanity.  These  pro^DOsi- 
tions,  and  many  more,  have  all  been  affirmed  as  ques- 


INTRODUCTORY.  25 

tions  of  law,  and,  unfortunately,  tlie  changes  of  legal 
tests  appear  to  have  little  relation  to  time ;  they  do 
not  keep  pace  with  our  increased  knowledge  of  insan- 
ity, as  the  opinions  of  the  English  judges  in  confer- 
ence, designated  by  Judge  Ladd  as  of  "  exquisite  in- 
humanity," and  absurd,  were  delivered  less  than  forty 
years  ago,  and  the  savage  dictum  of  Baron  Bramwell 
was  uttered  in  1860,  while  the  exquisitely  humane 
opinion  of  Sir  Edward  Coke  was  delivered  three  cen- 
turies ago,  ere  the  subject  of  insanity  had  emerged 
from  the  thick  superstitious  gloom  with  which  it  was 
enshrouded,  when  the  loss  of  reason  was  looked  upon 
as  a  dire  disgrace, — the  special  visitation  of  the  Al- 
mighty in  his  anger,  or  as  a  direct  demoniacal  pos- 
session. 

§  7.  With  such  variable  legal  criteria  in  insanity 
trials,  is  it  surprising  that  there  should  be  uncertainty 
of  verdict  ?  The  legal  tests  appear  to  be  as  untrust- 
worthy as  are  the  psychical  definitions,  and,  as  if  the 
diversity  and  mutability  of  criteria  were  not  enough, 
the  almost  invariable  practice  of  allowing,  and  re- 
quiring general  medical  practitioners,  who,  in  a  criti- 
cal sense,  know  nothing  whatever  of  insanity,  to  tes- 
tify as  experts,  removes  the  little  remaining  proba.bility 
of  uniformity  of  procedure  or  certainty  of  verdict. 


26         MEDICO-LEGAL   EELATIONS   OF   INSANITY. 

It  is  obvious  that  no  metaphysical  or  psychical 
definition  or  legal  test  has  yet  been  found  which  can 
be  safely  invoked  to  determine  the  sanity  or  insanity 
of  prisoners  charged  with  the  commission  of  crime; 
nor  do  we  think  a  safe  criterion  ever  will  be  found, 
for  reasons  which  will  be  presented  when  inquiring 
into  the  nature  of  insanity. 

§  8.  Dr.  Taylor  says  :^  "Many  attempts  have  been 
made  by  psychologists  to  define  insanity ;  but  the  defi- 
nitions .  .  .  are  defective,  inasmuch  as  they  are  not 
adapted  to  the  various  foi'ms  of  the  disease."  Messrs. 
AVharton  and  Stille  do  not  attempt  a  definition ;  they 
say  :^  "To  those  who  have  examined  that  portion  of 
the  preceding  pages  which  treats  of  the  legal  relations 
of  mental  unsoundness,  it  will  be  obvious  that  no 
hypothesis  can  be  constructed  which  will  meet  with 
exactness  every  possible  future  case.  No  general 
definition  has  therefore  been  attempted,  and  it  is  suffi- 
cient at  present  to  notice  the  three  prominent  hypo- 
theses by  which  the  cause,  rather  than  the  nature, 
of  mental  unsoundness  has  been  explained.  This  ex- 
amination is  here  made  more  thorough,  from  the  fact 
that  it  is  upon  the  result  of  this  inquiry  that  the  plii- 

1  Med.  Juris.,  vol.  ii.  pp.  476-7.  ^  Med.  Juris.,  I  318. 


INTRODUCTORY.  27 

losoj)liy  of  tlie  common  law  doctrine  of  insanity  must 
depend."  Definitions  and  criteria,  legal,  moral,  and 
intellectual  in  their  scope,  must  therefore  be  dis- 
carded, as,  with  a  single  exception,  one  after  another 
of  them  has  repeatedly  been  shown  to  be  untrust- 
worthy. The  exception  referred  to  is  the  criterion 
laid  down  by  Dr.  Taylor,  known  as  the  "ordinary 
rule  of  society"  test,  which  is  sometimes  invoked ;  and 
not  being  aware  of  the  existence  of  any  analysis  of  it, 
a  brief  examination  of  its  claim  to  be  considered  a 
criterion  of  insanity  will  be  made  before  entering  upon 
the  discussion  of  the  "  three  prominent  hypotheses." 

§  9.  Dr.  Taylor  says :  ^  "  The  terms  insanity,  lu- 
nacy, unsoundness  of  mind,  mental  derangement, 
mental  disorder,  madness,  and  mental  alienation  or 
aberration  have  been  indifferently  apj)lied  to  those 
states  of  disordered  mind  in  which  a  person  loses  the 
power  of  regulating  his  actions  and  conduct  according 
to  the  ordinary  rules  of  society." 

That  which  is  to  be  used  as  a  criterion  or  rule  of 
judgment  must  itself  be  a  fixed  quantity  if  it  is  ex- 
pected that  conclusions  deduced  therefrom  will  be 
exact  and  uniform;    that  which  is  mutable  cannot 

^  Med.  Juris.,  vol.  ii.  p.  476. 


28         MEDICO-LEGAL   EELATIONS   OF   INSANITY. 

properly  be  used  as  such  standard.  At  what  time  in 
the  world's  history  have  "  the  ordinary  rules  of  soci- 
ety" been  of  Medo-Persian  immutability  ?  What  are 
"  the  ordinary  rules  of  society"  to-day,  what  were 
they  a  hundred  years  ago,  and  what  will  they  be  a 
century  hence  ?  Tliere  are  in  society  three  grades  of 
men, — those  who  are  abreast  with,  those  who  are 
behind,  and  those  wdio  are  intellectually  in  advance 
of  the  times  in  which  they  live.  It  would  be  mani- 
festly unjust  to  judge  those  who  are  either  before  or 
after  their  own  times  by  "  the  ordinary  rules  of  so- 
ciety," because  they  do  not  properly  belong  to  that 
period,  and  the  world's  greatest  men  have  almost  in- 
variably been  in  advance  of  their  own  times. 

Had  Galileo  not  been  in  advance  of  the  age  in 
which  he  lived,  he  would  not  have  been  persecuted 
for  asserting  the  earth's  diurnal  motion  and  its 
motion  round  the  sun.  Festus  declared  Paul  to  be 
mad  through  much  learning  because  he  expressed  a 
new  and  strange  belief,  at  variance  with  "  the  ordinary 
rules  of  society"  in  Judea,  and  yet,  Festus  and  society 
to  the  contrary  notwithstanding,  the  mad  doctrines  of 
Paul  are  now,  and  have  been  for  centuries,  believed 
by  the  majority  of  the  civilized  world,  giving  tone 
and  direction  to  society.  *  A  little  less  than  two  liun- 


INTEODUCTOEY.  29 

dred  years  ago  a  person  living  in  Salem,  Massacliu- 
setts,  judged  by  the  "ordinary  rules  of  society"  of 
that  day,  would  have  been  thought  insane  if  he  could 
not  believe  in  witchcraft;  to-day,  in  the  same  city, 
judged  by  the  same  standard,  he  would  be  considered 
a  lunatic  if  he  did.  It  is  unnecessary  to  multiply 
illustrations  showing  the  variableness  of  "the  ordi- 
nary rules  of  society,"  as  even  a  cursory  examination 
of  the  subject  will  convince  any  person  that  they  are 
different  to  absolute  contradiction  in  many  particulars, 
in  different  ages,  in  different  countries,  nay,  even  in 
different  localities  of  the  same  country.  That  any- 
thing so  changeable  as  "  the  ordinary  rules  of  society" 
should  ever  have  been  thought  of  as  a  standard  of 
judgment  in  insanity  almost  passes  belief,  and  yet, 
reader,  your  sanity  and  mine  may  be  determined  by 
that  criterion,  as  it  is  found  in  a  work  that  is  consid- 
ered "  good  authority"  on  medical  jurisprudence  at 
the  present  time.  But  another  important  question 
arises :  How  nearly  complete  must  be  the  agreement 
with,  or  how  great  must  be  the  divergence  from, 
"  the  ordinary  rules  of  society"  to  constitute  a  person 
sane  or  insane  ?  To  which  of  the  social  command- 
ments must  we  yield  implicit  obedience,  and  which 
of  them  may  we  break  with  impunity  without  ren- 


30         MEDICO-LEGAL   RELATIONS   OF   INSANITY. 

dering  ourselves  obnoxious  to  the  charge  of  hinacy  ? 
There  is  no  authoritative  answer  furnished,  nor  can 
there  be,  because  there  is,  in  fact,  no  code  estab- 
lished for  the  regulation  of  society.  The  usual 
method  employed,  however,  is  to  call  a  number  of 
physicians  to  testify  as  experts  in  the  premises. 
Why  are  medical  men  called  upon  to  give  evidence, 
as  if  they  were  the  sole  exponents  of  the  ordinary 
rules  of  society,  when  but  few  doctors  are  society  men 
at  all?  The  procedure  is  absurd,  but  not  more  so 
than  calling  general  medical  practitioners  as  experts 
in  insanity,  because  in  no  strict  use  of  the  term  are 
they  experts, — persons  specially  skilled  in  either  the 
"rules  of  society"  or  insanity.  Mark  the  apparent 
contradiction.  Taylor  says:^  "In  an  insane  person 
there  may  be  no  bodily  disease ;"  and  yet  he  and  all 
other  medical  jurists,  most  of  whom  deny  the  physi- 
cal origin  of  insanity,  nevertheless  insist  upon  em- 
ploying physicians  as  experts  in  insanity.  Does  not 
this  indicate  most  forcibly  that  the  writers  have  an 
undefined  conviction,  after  all,  that  insanity  is  a  physi- 
cal disease  to  be  determined  by  physicians ;  but,  un- 
fortunately, the  conviction  lies   at   such  a  jirofound 

^  Med.  Juris.,  vol.  ii.  p.  476. 


INTEODUCTORY.  31 

depth  in  tlieir  consciousness  that  they  are  unable  to 
formulate  it  distinctly  for  themselves,  or  to  express  it 
in  lucid  sequence  to  the  apprehension  of  others  ?  It  is 
not  enough  to  say  that  the  test  in  question  is  untrust- 
worthy ;  its  basis  is  unsound,  as  no  departure,  however 
great,  from  "  the  ordinary  rules  of  society, ^^  no  un- 
reasonableness of  belief,  nor  extravagance  in  conduct 
or  behavior,  is  alone,  conclusive  evidence  of  insanity. 
From  a  multitude  of  illustrations  at  our  disposal  we 
select  one  which  proves  the  above  proposition. 

§  10.  The  devout  Roman  Catholic  receives  a  wafer 
which  he  knows  is  made  of  flour  and  water,  but  after 
consecration  by  an  ecclesiastic  he  believes  the  wafer 
to  be  changed  to  flesh.  That  belief  is  not  confined 
to  an  isolated  few,  as  more  than  half  the  Christian 
world  so  believe;  nor  is  it  confined  to  the  ignorant 
or  uneducated,  as,  aside  from  the  literary  among  the 
laity,  it  is  believed  by  the  priesthood  and  hierarchy 
of  the  papal  church,  a  body  of  men,  who,  for  char- 
acter, education,  and  scientific  attainments  are  perhaps 
the  peers  of  any  other  class.  The  consecrated  wafer 
may  be  subjected  to  chemical  analysis  by  one  of 
themselves,  the  result,  hydrated  flour,  and  yet,  in  de- 
fiance of  the  demonstration  by  one  of  the  exactest, 
most  reliable  sciences,  and  despite  the  evidences  of 


32         MEDICO-LEGAL   RELATIONS   OF   INSAmTY. 

their  senses,  hundreds  of  thousands  of  the  most 
learned,  most  scientific  men,  including  the  analyst 
himself,  still  believe  the  consecrated  wafer  to  be  veri- 
table flesh,  and  millions  have  so  believed  since  the 
doctrine  was  first  promulgated. 

The  most  momentous  interests  are  ordinarily  de- 
cided by  the  evidence  of  any  one  of  our  senses.  The 
judge  and  jury  form  their  opinions  from  what  they 
hear;  the  witnesses  testify  to  what  they  saw;  and 
thus  from  the  sight  of  the  witnesses  and  from  the 
hearing  of  the  court  and  jury  the  most  important 
suits  are  determined  by  the  universal  consent  of  man- 
kind. Yet,  in  determining  the  constituents  of  the 
consecrated  wafer,  we  have  the  evidence,  not  of  one 
sense  alone,  but  the  corroborative  evidence  of  four 
out  of  our  five  senses, — sight,  touch,  taste,  and  smell, 
— to  wliich  is  superadded  the  scientific  demonstration, 
all  emphatically  testifying  that  the  consecrated  wafer 
is  not  flesh,  and  yet  millions  upon  millions  believe 
and  have  believed  in  the  sacred  transubstantiation, 
the  evidence  of  their  senses  and  scientific  demonstra- 
tion to  the  contrary  notwithstanding.  AVill  any  per- 
son dare  to  pronounce  that  belief  evidence  of  insanity? 
The  supposition  is  preposterous ;  and  yet  there  cannot 
be  found  among  the  ravings  of  the  most  insane  a 


IISTTEODUCTOEY.  33 

statement  of  belief  more  at  variance  with  the  evidence 
of  our  senses  and  of  science. 

For  an  illustration  of  extravagance  in  conduct  in 
persons  of  whose  sanity  there  can  be  no  question, 
from  an  almost  limitless  historical  storehouse,  we 
think  a  reference  to  the  disciples  of  Ignatius  Loyola 
will  suffice.^  The  self-imposed  flagellations  and  tor- 
tures publicly  inflicted  upon  themselves  by  the  Jesuits 
could  not  easily  be  surpassed  in  wild  extravagance, 
and  yet  no  sane  man  would  hazard  the  opinion  that 
that  most  wonderful  organization  was  composed  of 
lunatics ;  therefore  the  conclusion  is  inevitable  that "  no 
unreasonableness  of  belief  nor  extravagance  in  conduct 
or  behavior  is  alone  conclusive  evidence  of  insanity.""^' 

§  11.  Assuming  that "  the  ordinary  rules  of  society'*" 
test  or  criterion  has  been  shown  to  be  as  untrustworthy 
as  those  previously  referred  to,  which  have  been  ex-- 
amined  by  others  and  found  wanting,  the  "three 
prominent  hypotheses"  of  Messrs.  Wharton  and= 
Stille  will  now  be  considered,  and  as  their  "  Medical 
Jurisprudence  of  Insanity"  is  so  much  more  extensive 
than  that  of  any  other  writer  on  the  subject  in  this 
country,  that  it  embraces  all  the  important  opinions. 


^  See  History  of  the  Jesuits,  Steinmetz  et  al.  ^  Ante,  p.  31., 

a 


34         MEDICO-LEGAL   EELATIOJfS   OF   INSA^TY. 

and  is  in  general  accord  with  tlie  views  of  all  Ameri- 
can medical  jurists  (excepting  Dr.  Kay's  advocacy  of 
moral  insanity),  reference  will  be  made  almost  exclu- 
sively to  the  text  of  their  work  in  the  further  discus- 
sion of  the  tests,  theories,  and  hypotheses  of  insanity 
in  their  medico-legal  relations. 

The  three  prominent  hypotheses  referred  to  are  the 
"somatic  or  materialistic,"  the  "metaphysical  or 
psychical,"  and  "  the  intermediate."  The  two  former 
theories  have  existed  for  ages ;  the  latter  hypothesis, 
we  believe,  owes  its  being,  in  its  present  proportions, 
to  the  writers  referred  to.  The  most  marked  di- 
visions of  the  subject  are  the  "  somatic"  and  "  meta- 
physical" ;  the  former  denying  and  the  latter  affirm- 
ing the  mind  to  be  a  distinct  entity,  not  dependent 
upon  the  body  for  its  existence. 

The  "  psychical"  or  "  metaphysical"  theory  will  be 
considered  first,  and  while  examining  its  apj)licability 
to  insanity  we  shall  introduce  the  ^^ physical  media^ 
theory,  and,  we  think,  fully  establish  it.  The  expe- 
diency of  considering  these  two  theories  together 
arises  from  the  fact  that  much  of  the  evidence  and 
many  of  the  arguments  used  in  proving  the  one  dis- 
prove the  other;  hence  by  treating  them  together 
useless  and  tedious  repetitions  are  avoided. 


^ 


CHAPTEK    11. 

"physical  media  theory"  introduced  and  dis- 
cussed WITH  the  psychical  OR  METAPHYSICAL 
THEORY. 

Crime  cannot  be  committed  unless  there  is  a  Mind  to  will  and  a  Body 
to  execute — Medical  Jurisprudence  has  nothing  to  do  with  either 
Mind  or  Body  if  separated — AVhat  is  Mind  ? — No  Direct  or  Pri- 
mary Evidence  of  the  Existence  of  Mind — Importance  of  the 
Body — Sensations — Diseased  Organs  produce  Disordered  Sensa- 
tions— Diseased  Organs  of  Transmission  produce  Distorted  Mental 
Manifestations — Distorted  or  Abnormal  Mental  Manifestations 
are  called  Diseases  of  the  Mind,  Insanity — No  Proof  that  the 
Mind  is  ever  diseased — Medication  of  the  Insane  irrational  if  the 
Disease  is  Mental — Definition  of  Disease — Partial  Insanity  im- 
possible according  to  the  Psychical  Theory — Insanity  does  not 
prove  that  it  is  the  Mind  that  is  diseased — Evidence  in  favor 
of  the  "  Physical  Media  Theory"  from  the  Physical  Expression 
of  Mental  Emotions — The  Mental  Manifestations  in  Diseases 
(Fevers,  Inflammation  of  the  Brain,  etc.) — Insane  Delusions  in- 
duced and  removed  at  will  by  Medicines — Post-Mortem  Disclo- 
sures— Cases  reported — Evidence  from  Small  Brains — Brain  the 
Organ  of  Mind — All  Experts  believe  Insanity  to  be  a  Physical 
Disease — Evidence  from  Insane  Asylums — Conclusions  reached — 
Definition  of  Insanity — Corollary. 

§  12.  The  "Physical  Media  Theory,"  like  the 
"Metaphysical  Theory"  regards  the  mind  as  a  dis- 
tinct, intangible,  incorporeal  entity,  not  dependent 
upon   the   body  for   its   existence;   but,    unlike   the 

35 


36         MEDICO-LEGAL   EELATIOXS    OF   IISTSANITY. 

"  Metapliysical  Theory,"  it  recognizes  tlie  most  inti- 
mate relations  between  mind  and  body,  and  holds 
that  in  this  life  the  mind  is  ivholly  dependent  for  the 
manifestations  of  its  operations  on  certain  organs  of 
the  body  which  we  designate  ^^ physical  medial 

Whether  the  mental  part  of  man  is  cajDable  of  an 
independent  existence ;  whether  it  will  so  exist  as  a 
disembodied  spirit,  with  capacity  for  exquisite  enjoy- 
ment or  intense  suffering,  is  a  question  of  all-absorb- 
ing interest  to  the  individual  and  to  the  race;  but, 
important  as  it  is  per  se,  it  does  not  properly  form  a 
part  of  the  discussion  of  the  "  Medico-legal  Relations 
of  Insanity.'"  The  expert,  the  medical  jurist,  and 
the  law  have  to  deal  with  the  mind  only  tvhen  con- 
nected with  the  body,  the  individual  comprising  both 
the  mind  and  the  body.  It  will  not  be  alleged  that 
the  mind,  unless  associated  with  the  body,  can  make 
a  will  or  commit  a  crime  of  which  human  laws  can 
take  cognizance,  nor  can  the  body  without  the  mind. 
The  act  does  not  make  a  person  guilty  unless  the  in- 
tention be  guilty  also.^  Hence  to  the  medical  jurist 
the  mind  and  body  together  constitute  the  individual, 
as  only  when  so  considered  can  there  be  any  legal 

*  "Actus  non  reum  facit  nisi  mens  re.i." — Legal  maxim. 


"physical  media  theory."  87 

responsibility.  Suppose  it  possible  for  the  mind, 
without  the  aid  of  the  body,  to  imagine,  plan,  reason, 
and  speculate,  as  long  as  those  mental  operations  re- 
main unacted  there  can  be  no  legal  interference.  It 
is  only  when  the  body  responds  to  the  mental  urging, 
by  word  or  act,  that  the  individual  may  become 
amenable  to  the  courts ;  but  that  the  mind,  while  a 
part  of  the  individual,  can  be  independent  of  the 
body  so  as  to  plan  or  reason  is  only  a  supj)osition,  be- 
cause we  know  absolutely  nothing  of  the  mind  per  se, 
which  fact  is  admitted  by  all  who  claim  for  it  exist- 
ence as  an  independent  entity. 

Herbert  Spencer  says:^  "To  write  a  chapter  for 
the  purpose  of  showing  that  nothing  is  known,  or  can 
be  known,  of  the  subject  which  the  title  of  the  chap- 
ter indicates  (the  substance  of  mind),  will  be  thought 
strange.  .  .  .  For  if  by  the  phrase  'substance  of 
mind'  is  to  be  understood  mind  as  qualitatively 
differentiated  in  each  portion  that  is  separable  by  in- 
trospection but  seems  homogeneous  and  undecompos- 
able;  then  we  do  know  something  about  the  'sub- 
stance of  mind,'  and  may  eventually  know  more. 
Assuming  an  underlying  something,  it  is  possible  in 

^  Principles  of  Psychology,  vol.  i.  p.  146. 


do  MEDICO-LEGAL   EELATIONS    OF    INSANITY. 

some  cases  to  see,  and  in  the  rest  to  conceive,  how 
these  multitudinous  modifications  of  it  arise.  But  if 
the  phrase  is  taken  to  mean  the  underlying  something 
of  which  these  distinguishable  portions  are  formed,  or 
of  which  they  are  modifications,  then  we  know  noth- 
ing about  it,  and  never  can  know  anything  about  it. 
It  is  not  enough  to  say  that  such  knowledge  is  be- 
yond the  grasp  of  human  intelligence  as  it  now  exists, 
for  no  amount  of  that  which  we  call  intelligence,  how- 
ever transcendent,  can  grasp  such  knowledge." 

What  the  mind  is  we  do  not  know.  But,  startling 
as  that  admission  may  appear  to  those  who  have  not 
given  the  subject  close  attention,  the  statement  that 
we  have  no  direct  or  primary  evidence  that  we  possess 
a  mind  at  all  will  be  more  surprising ;  yet  such  is  the 
fact. 

By  direct  or  primary  evidence  is  meant  that  which 
appeals  for  confirmation  to  one  or  more  of  our  senses. 
We  cannot  see,  hear,  taste,  touch,  or  smell  the  mind ; 
it  is  not  patent  to  any  of  our  senses ;  and  therefore  we 
have  no  direct  or  primary  evidence  of  its  existence. 
I  am  aware  that  it  is  held  by  many  that  what  we  call 
oicr  0W71  consciousness  is  direct  evidence  of  the  strong- 
est kind,  but  the  objection  arises,  how  can  we  be  con- 
scious of  anything  unless  through  the  organs  of  sense, 


"physical  media  theory."  39 

the  sensorium  ?  While  a  very  interesting  question  to 
the  psychologist,  it  is  unnecessary  to  determine,  for 
the  purposes  of  this  work,  whether  or  not  the  senso- 
rium is  indispensable  to  consciousness;  because,  the 
result  affects  the  individual  alone,  and  cannot  be  used 
as  proof  of  anything,  for  every  one  will  believe  his  own 
consciousness  rather  than  that  of  any  other  person. 

§  13.  The  somatists,  noting  the  in  dispensability, 
and  marvellous  adaptability,  of  our  physical  structure 
for  expressing  mental  operations,  conclude  that  mind 
is  simply  a  function  of  the  nervous  system,  the  most 
highly  organized  part  of  our  structure,  and  many  in- 
genious hypotheses  have  been  offered,  tracing  with 
more  or  less  exactness  and  plausibility  the  molecular  -^  Uui^  -k. 
changes  which  generate  thought  and  the  other  attri- 
butes of  mind ;  but,  we  think  they  fail  to  establish  the 
theory  of  materialism.  "While  many  metaphysicians, 
psychologists,  and  theologians  appear  to  run  to  the 
opposite  extreme,  unduly  exalting  the  mental,  they  as 
unjustly  degrade  and  hold  in  comparative  contempt 
that  most  transcendently  perfect  mechanism,  the 
human  body,  asserting,  often  with  more  regard  to 
rhetoric  than  to  logic,  that  the  body  is  but  an  encum- 
brance to  the  mind.  The  Apostle  Paul  appeared  to 
hold  it  in  higher  estimation  when  he  made  its  resur- 


*t-  ^i 


40         MEDICO-LEGAL   EELATIONS   OF   INSANITY. 

rection  the  test  of  the  truth  of  the  whole  fabric  of  the 
Christian  religion  :  "  But  if  there  be  no  resurrection 
of  the  dead,  then  is  Christ  not  risen ;  and  if  Christ 
be  not  risen,  then  is  our  preaching  vain,  and  your 
faith  is  also  vain.  Then  they  also  which  are  fallen 
asleep  in  Christ  are  perished."^ 

§  14.  Whether  there  are  stored  up  in  the  human 
ova, — the  germs  of  our  being — ^potentialities  and  ca- 
pacities, which  irresistibly  determine  character,  trans- 
mitted through  countless  generations  of  ancestors,  as 
taught  by  many  eminent  writers,^  is  a  question  that 
will  receive  consideration  in  its  proper  place.  What- 
ever may  be  the  latent  powers  and  capacities  of  the 
infant,  we  know  that  the  senses  furnish  the  conditions 
of  knowledge.    "  It  is  obvious  that  we  cannot  go  back 


^  1  Corinthians  xv.  13,  H,  18. 

*  Prominent  among  the  school  of  writers  referred  to  is  Dr.  Mauds- 
ley,  who  says:*  "Not  only  has  the  human  ovum  this  destiny  of  the 
species  in  its  nature,  but  each  particuUir  ovum  has  an  individual  in- 
heritance which  makes  for  it  an  individual  destiny.  Men  are  in  much 
alike,  but  each  individual  differs  in  some  respects  from  any  other  indi- 
vidual who  now  exists,  or,  it  may  be  confidently  assumed,  ever  has  ex- 
isted, or  ever  will  exist.  And  this  is  not  a  difference  which  is  due  to 
education  or  circumstances,  but  a  fundamental  difference  of  nature 
which  neither  education  nor  circumstances  can  eradicate." 


*  Responsibility  in  Mental  Disease,  p.  21. 


"physical  media  theory."  41 

in  personal  experience  to  the  rise  of  self-conscious- 
ness with  the  view  of  constructing  a  history  of  the 
development  of  our  knowledge.  Nor  will  observation 
of  the  dawn  of  intelligence  in  the  life  of  a  child  sup- 
ply what  is  required.  There  is  but  one  method  open, 
— analysis  of  present  experience  in  order  to  discover 
its  essential  elements."^ 

"A  person  touches  with  the  forefinger  a  sheet  of 
note-paper,  a  table-cloth,  and  an  ink-bottle.  Passing 
to  the  open  air,  the  breeze  plays  on  his  face,  he 
strikes  his  foot  against  a  stone,  and  is  jostled  by  a 
passer-by.  The  facts  brought  under  notice  are  these : 
simple  sensation,  succession  of  sensations,  difference 
of  sensations,  discrimination  of  sensations,  discriinina- 
tion  of  things,  or  knowledge  of  external  reality  by 
means  of  sensation.  Each  sensation  is  a  distinct  fact 
of  experience,  dependent  on  a  single  separate  action 
or  vibration  of  the  nerve-fibre.  The  fibre  must  have 
accomplished  its  functional  action  in  one  case  before 
it  is  capable  of  performing  another  like  action.  If 
we  try  to  hurry  the  actions  of  the  fibre,  we  lose  dis- 
tinctness. There  is  thus  entire  separateness  of  action 
in  the  organism  ;  the  union  is  in  our  experience,  and 

^  J,  S.  Mill,  Ex.  Hamilton's  Philosophy,  p.  171. 


42         MEDICO-LEGAL   EELATIONS    OF   INSANITY. 

nowhere  else.  The  successive  sensations,  united  in 
experience,  are,  however,  distinguished  by  us,  and 
that  not  merely  as  facts  following  each  other  in  a 
certain  order,  but  as  forms  of  experience,  differing 
from  each  other  in  nature.  Nay,  more ;  not  only  are 
the  feelings  distinguished,  but  so  also  are  the  things 
or  objects  by  contact  with  which  the  sensations  arise ; 
the  nerve  movements  are  not  distinguished  by  us,  be- 
cause they  are  not  exj)erienced.  But  all  these  other 
features  belong  to  the  experience  described  by  simple 
enumeration  of  the  six  different  sensations  involved  in 
the  experiment  now  under  consideration.  A  philosophy 
of  human  sensations  must  then  be  a  philosophy  of  all 
these  elements  of  experience."^  As  the  elements  of 
oar  experience  are  dependent  upon  sensations,  it  in- 
evitably follows  that  if  our  organs  of  sense  are  dis- 
eased or  disordered,  the  respective  sensations  will  be 
defective  or  distorted,  consequent  ujDon  the  disease  or 
disorder  of  the  medium  of  transmission.  If  tlie  optic 
nerve,  for  instance,  is  diseased,  the  true  representation 
of  the  object  will  not  be  conveyed  to  the  sensorium. 
Nay,  it  is  not  necessary  for  the  nerve  of  any  of  the 
senses  to  be  diseased;   a,  slight  disorder  consequent 

^  Calderwood,  Relations  of  Mind  and  Brain,  p.  215. 


"PHYSICAL   MEDIA   THEOKY.  43 

upon  disease  of  other  organs  will  materially  change 
or  modify  the  sensations. 

"  All  seems  infected  that  the  infected  spy, 
As  all  looks  yellow  to  the  jaundiced  eye." 

To  offer  proof  of  that  which  can  so  readily  be 
verified  by  observation  is  unnecessary.  Such  modifi- 
cations are  of  every-day  occurrence  in  the  lives  of 
physicians,  and  every  person  who  has  with  any  care 
noted  his  own  feelings  cannot  have  failed  to  observe 
the  different  appearances  of  the  same  scene,  dependent 
wholly  upon  his  surroundings,  his  associations,  or 
even  upon  the  condition  of  his  liver,  stomach,  or 
bowels. 

It  is,  then,  indispensably  necessary  to  a  true  repre- 
sentation of  the  object  in  the  sensorium,  that  the 
organs  of  transmission  should  be  in  health.  From 
the  primary  impression  on  the  terminal  branches  of 
the  nerves  of  sensation,  through  all  the  degrees  of 
progress,  as  sensation,  ideation,  and  volitional  impulse, 
to  the  external  manifestation  of  these  mental  opera- 
tions, the  physical  media  must  he  healthy  if  the  mani- 
festations are  normal,  and  vice  versa,  if  the  media  are 
diseased  or  disordered;  pari  passu,  the  manifesta- 
tions of  the  mind^s  oioerations  ivill  be  abnomnal,  dis- 
ordered, some  of  which  disordered  mental  manifesta- 


44         MEDICO-LEGAL   RELATIONS   OF   INSANITY. 

tions  are  called  diseases  of  the  mind, — insanity,  when 
in  reality  they  are  the  result  of  diseased  or  disordered 
physical  media,  while  the  mind,  as  far  as  we  know 
(assuming  for  it  an  existence  as  a  distinct  entity),  is 
not  the  subject  of  disease. 

If  the  mind  can  be  diseased,  then,  if  the  disease  he 
sufficiently  'prolonged  and  intensified,  the  mind  must 
DIE.  Having  no  direct  or  primary  proof  of  the  ex- 
istence of  mind,  it  must  be  considered  in  the  light  of 
the  secondary  evidence  furnished  by  the  manifesta- 
tion of  its  ojDerations  through  physical  media. 

§  15.  On  what  theory,  or  even  hypothesis,  other 
than  that  of  diseased  physical  media,  can  the  medica- 
tion of  the  insane  be  otherwise  than  irrational  and 
absurd  ?  What  do  physicians  know  of  the  constitu- 
tion of  mind,  on  the  assumption  that  it  is  a  distinct 
entity,  and  subject  to  disease?  Or  what  do  physicians 
know  of  the  therapeutic  action  of  material  remedies 
on  an  immaterial  mind  ?  The  idea  of  curing  a  dis- 
eased incorporeal  intangible  entity  by  the  use  of  ma- 
terial remedies  is  so  utterly  absurd  that  it  is  difficult 
to  suppose  a  man  sane  who  entertains  it.  But  on  the 
theory  that  the  disordered  mental  manifestations  are 
the  result  of  diseased  physical  media,  the  exhibition 
of  material  remedies  to  cure  material  disease  is  rational 


"  PHYSICAL   MEDIA   THEORY."  45 

and  proper,  and  if,  by  the  administration  of  suitable 
remedies,  disease  is  removed  from  tlie  media,  then  the 
manifestations  of  the  mind's  operations  again  become 
normal  and  natural,  and  it  is  notorious  that  such  is 
the  effect  of  medical  treatment  in  many  cases  of  in- 
sanity. When  a  case  of  insanity  is  cured  by  medical 
treatment  it  is  obvious  that  physical,  not  mental,  dis- 
ease has  been  beneficially  treated,  and  therefore  those 
cases  which  are  so  cured  were  unquestionably  cases  of 
insanity  due  to  physical  causes;  id  est,  "diseased 
media."  Had  the  sage  who  centuries  ago  wrote 
"  mens  sana  in  cor  pore  sand'^  that  idea  in  his  mind  ? 

§  16.  Regarding  the  mind  as  a  distinct  entity,  a 
unit,  indivisible  and  indestructible,  according  to  the 
metaphysical  or  psychical  theory,  what  evidence  is 
there  afforded  of  its  being  subject  to  disease  ?  What 
is  disease?  Dr.  Samuel  Johnson's  admirable  defini- 
tion is,  "  That  which  causes  destruction  by  disintegra- 
tion of  the  elements  of  its  contexture  or  the  resolution 
of  its  parts."  Applied  to  the  mind  it  would  be  non- 
sense, because  that  cannot  be  disintegrated  which  has 
no  parts,  nor  can  there  be  a  "  resolution  of  its  parts" 
of  that  which  is  a  unit;  neither  can  there  be  "de- 
struction by  disintegration"  of  that  which  is  indi- 
visible. 


46         MEDICO-LEGAL   KELATIONS   OF   INSANITY. 

It  may,  however,  be  urged  by  those  who  beheve  in 
a  "  diseased  mind"  that  the  incorporeal  is  affected  dif- 
ferently by  disease — is  not  subject  to  the  same  laws  of 
health  and  disease  as  the  corporeal ;  granted  that  it 
may  be  so,  we  do  not  know.  Will  they  furnish  the 
modus  operandi  of  that  disease  ?  All  ideas  of  disease 
not  deduced  from  what  we  know  of  disease  in  nature 
must  be  speculative,  vague,  and  unreal,  altogether  too 
uncertain  to  be  made  the  basis  of  any  hypothesis  of 
practical  jurisprudence.  Again,  if  the  mind  is  a  unit, 
indivisible,  how  can  partial  insanity,  or  insanity  Avith 
regard  to  one  or  more  classes  of  subjects,  while  at  the 
same  time  the  person  is  sane  on  other  subjects,  be  ex- 
plained ?  And  that  condition  unquestionably  exists. 
Dr.  Luys  says:^  "Thus,  in  the  cases  to  which  we 
allude,  the  perceptive  regions  of  the  sensorium — those 
in  which  the  manifestations  of  conscious  personality 
take  place,  are  sometimes  spared,  and  in  a  condition 
of  complete  integrity,  while  the  neighboring  regions 
are  invaded  by  different  kinds  of  morbid  processes ; 
and  then  we  witness  a  strange  phenomenon — a  sort  of 
duplication  of  the  mental  unity.  The  individual — thus 
divided  into  two  parts — one  portion  of  himself  remain- 

^  Luys,  The  Brain  and  its  Functions,  pp.  207-8. 


"physical  media  theory."  47 

i'.ig  healthy,  while  the  other  is  at  the  mercy  of  the 
phenomena  of  automatic  involuntary  impulse — looks 
on,  as  a  conscious  spectator,  at  certain  extravagant  acts 
that  he  is  forced  to  commit,  at  certain  senseless  words 
that  he  utters.  He  is  in  a  manner  reduced  to  the 
painful  position  of  the  tetanic  patient,  who  at  .the  mo- 
ment of  the  attack  sees  his  muscles  escape  from  the 
influence  of  his  will,  contract  under  the  influence  of  the 
cells  of  the  spinal  cord,  in  a  paroxysm  of  automatic, 
irresistible  activity,  and  thus  become  unwieldable  in- 
struments which  cease  to  belong  to  him.  The  annals 
of  mental  disease  include  numerous  examples  of  this 
state  of  dissociation  of  the  vital  forces  of  cerebral 
activity.  There  are  patients  sometimes  who  write 
and  describe  their  distresses — the  involuntar}^  agonies 
through  which  they  pass,  the  words  they  have  pro- 
nounced unwittingly ;  how  they  are  impelled  to  speak 
in  spite  of  themselves,  to  say  what  they  would  not 
have  wished  to  say,  to  go  through  ridiculous  gesticu- 
lations, and  to  commit  extravagancies  they  believe 
themselves  incapable  of  restraining.  .  .  .  These 
strange  phenomena,  these  general  or  partial  deliriums, 
these  strange  impulses  of  which  we  see  abortive  speci- 
mens in  certain  pregnant  women,  constitute,  in  the 
form  of  suicidal  or  homicidal  impulses  the  essential 


48  MEDICO-LEGAL   KELATIONS   OF   INSANITY. 

,    morbid  elements,  and  in  a  manner  the  primary  fac- 

'^   tors  of  mental  pathology." 

It  is  a  well-established  fact  that  very  many  insane 
persons  reason  with  force  and  clearness  on  some  sub- 
jects, while  on  other  subjects,  at  the  same  time,  they 
are  extravagantly  irrational.  In  general  mania  the 
central  brain  functions  are  usually  exalted,  and  rea- 
soning is,  for  the  individual,  unusually  forcible ;  and 
when  the  conclusion  reached  is  incorrect,  it  is  from 
the  incorrectness  of  the  assumption  rather  than  from 
lack  of  logic  in  the  argument.  This  condition  cannot 
be  satisfactorily  accounted  for  on  the  psychological  or 
metaphysical  theory,  because,  if  the  mind  is  a  unit, 
indivisible,  it  must  all  be  healthy  or  all  diseased,  either 
all  rational  or  all  irrational.  We  cannot  think  of 
a  unit  being  partly  healthy  and  partly  diseased ;  if 
it  were  so,  there  would  be  at  least  two  parts,  the 
healthy  and  the  diseased. 

It  has  been  alleged,  however,  that  insanity  itself  is 
prima  facie  evidence  of  diseased  mind.  Granted ; 
but  prima  facie  evidence  is  not  conclusive  proof.  In 
past  ages,  when  medical  and  allied  subjects  were  not 
submitted  to  severe  scientific  criticism,  it  is  not 
surprising  that,  judging  from  appearances,  insanity 
should  have  been  believed  to  be  a  disease  of  the 


"physical  media  theoky."  49 

mind ;  but  close  scrutiny  lias  shown  that  the  apjoear- 
ances  were  illusory ;  and  it  may  be  remarked  that 
prominent  among  the  reasons  which  led  to  a  close 
examination  of  the  subject  were  the  two  to  which 
reference  has  already  been  made — viz.,  the  irration- 
ality of  medicating  lunatics  on,  and  the  impossibility 
of  reconciling  j)artial  insanity  with,  that  theory  of 
insanity. 

In  the  preceding  pages  indirect  evidence  of  the 
"physical  media"  theory  has  been  offered,  showing 
its  reasonableness,  its  ability  to  harmonize  the  con- 
tradictions, and  to  render  the  impossibilities  of  the- 
metaphysical  theory  legitimate  sequences. 

We  shall  now  proceed  to  the  consideration  of  the^ 
direct  and  positive  evidence  by  which  the  "  physical 
media  theory"  will  be  fully  established. 

§  17.  Prof  Bain,  who  is  not  in  accord  with  soma- 
tists,  says,  ^  "  The  facts  showing  that  the  connection 
of  mind  and  body  is  not  occasional  or  partial,  but 
thorough-going  and  complete,  are  such  as  the  follow- 
ing :  In  the  first  place,  it  has  been  noted  in  all  ages 
and  countries  that  the  feelings  possess  a  natural  lan- 
guage or  expression ;  so  constant  are  the  appearances. 


^  Mind  and  Body,  p.  6. 
4 


\^ 


50         MEDICO-LEGAL   EELATIONS   OF   INSANITY. 

characterizing  tlie  different  classes  of  emotions  that 
we  regard  them  as  a  part  of  the  emotions  themselves. 
The  smile  of  joy,  the  j)uckered  features  in  pain,  the 
stare  of  astonishment,  the  quivering  of  fear,  the  tones 
and  glance  of  tenderness,  the  frown  of  anger,  are 
united  in  seemingly  inseparable  association  with  the 
states  of  feeling  that  they  indicate.  If  a  feeling 
arises  without  its  appropriate  sign  or  accompaniment, 
we  account  for  the  failure  either  by  voluntary  sup- 
pression or  by  the  faintness  of  the  excitement,  there 
being  a  certain  degree  of  intensity  requisite  to  affect 
the  bodily  organs.  On  this  uniformity  of  connection 
between  feelings  and  their  bodily  expression  depends 
our  knowledge  of  each  other's  mind  and  character, 
.  .  .  and  we  can  even  estimate  in  any  given  case  the 
degree  of  the  feeling." 

"In  the  artistic  conceptions  of  the  Middle  Ages, 
more  especially,  the  most  divine  attributes  of  the  im- 
material soul  had  their  countei-part  in  the  material 
body ;  the  martyr,  the  saint,  the  blessed  Virgin,  the 
Saviour  himself,  manifested  their  glorious  nature  by 
the  sympathetic  movements  of  their  mortal  frame- 
work. So  far  as  concerns  the  entire  compass  of  our 
feelings  or  emotions,  it  is  the  universal  testimony  of 
mankind  that  these  have  no  independent  spiritual 


"physical  media  theory."  51 

subsistence,  but  are  in  every  case  embodied  in  our 
jleshly  formr^  Strange  as  it  may  appear,  the  facts 
above  stated,  strong  and  convincing  as  they  are,  have 
been  usually  unnoticed  in  the  almost  endless  discus- 
sions regarding  the  mind.  Apparent  as  they  are  to 
the  common  mind,  and  intently  studied  as  they  have 
been  by  artists  and  poets,  they  have  been  disregarded 
both  by  metaphysicians  and  by  theologians  when  en- 
gaged in  defining  the  boundaries  of  body  and  mind. 
"  Now  the  facts  that  connect  the  mind  with  the  brain 
are  numerous  and  irresistible.  Let  us  rehearse  a  few 
of  them  under  the  two  aspects  already  stated, — brain 
changes  affecting  the  mind,  mental  changes  affecting 
the  brain.  Under  the  first  topic  the  commonest  ob- 
servation is  the  effect  of  a  blow  on  the  head,  which 
suspends  for  the  time  consciousness  and  thought ;  at  a 
certain  pitch  of  severity  it  produces  a  permanent  in- 
jury of  the  faculties,  impairing  the  memory,  or  occa- 
sioning some  form  of  mental  derangement.  It  may 
also  remedy  derangement ;  there  are  cases  on  record 
where  a  blow  on  the  head  has  cured  idiocy.  .  .  . 
Many  instances  of  imbecility  of  mind  are  distinctly 
traced  to  causes  affecting  the  nutrition  of  the  brain. 


^  Bain,  Mind  and  Body,  p.  8.  (The  italics  are  mine. — Author.) 


52         MEDICO-LEGAL   KELATIONS   OF   INSANITY. 

"  The  more  careful  and  studied  observations  of 
physiologists  have  shown  beyond  question  that  the 
brain  as  a  whole  is  indispensable  to  thought,  to  feel- 
ing, and  to  volitio7i;^  while  they  have  further  dis- 
criminated the  functions  of  its  different  parts."  ^ 

§  18.  Were  this  work  intended  only  for  physicians, 
it  would  be  superfluous  to  refer  to  such  evidence  as 
they  have  in  every-day  practice  of  the  effects  of 
mental  impressions  on  the  physical  organs  and  their 
functions  in  disease  and  health,  and,  per  contra,  the 
effect  produced  on  the  mind  b}'-  the  different  conditions 
of  the  body.  Such  as  the  well-known  fact  that  a  sud- 
den severe  mental  shock  will  for  a  time  arrest  diges- 
tion and  remove  the  desire  for  food  in  persons  who 
just  before  the  shock  were  suffering  from  hunger; 
the  inability  of  some  persons  to  retain  certain  medi- 
cines if  they  know  that  they  have  been  administered, 
while  if  the  medicine  is  taken  unwittingly,  no  discom- 
fort is  experienced ;  the  expectation  of  a  chill  to  re- 
turn at  stated  intervals ;  the  exalted  mental  condition 
almost  pathognomonic  of  general  paresis,  or  the  almost 
total  loss  of  the  power  of  thought ;  and  the  dull,  heavy, 


^  The  italics  are  mine. — Author. 
'  Bain,  Mind  and  Body,  pp.  12,  13. 


"physical  media  theory."  53 

absent,  puzzled  expression  of  the  features,  which  indi- 
cate with  certainty  the  presence  of  typhus  fever.  The 
list  might  be  extended  indefinitely.  Not  only  is  the 
mind  influenced  by  the  physical  condition,  but  in 
many  diseases  and  disorders  it  is  entirely  subordi- 
nated. In  severe  cases  of  our  ordinary  fevers  there 
are  the  insane  ravings,  delirium,  etc.,  which  mark 
the  loss  of  control  of  reason  and  judgment,  and  so 
well  known  are  these  symptoms  that,  given  a  certain 
fever,  the  physician  will  tell  you  the  character  of  the 
mental  aberrations,— the  boisterous  ravings  of  the 
sthenic,  and  the  low,  muttering  delirium  of  asthenic 
fevers.  In  inflammation  of  the  brain  or  of  its  menin- 
ges the  wild  delirium  is  so  well  understood,  even  by 
non-professional  people,  that  any  physician  would  be 
esteemed  almost,  if  not  quite,  a  lunatic  who  should 
advise  such  a  patient  to  be  sent  to  an  insane  asylum ; 
common  observation  having  taught  them  that  the  in- 
sane ravings  and  delirium  were  the  result  of  the  in- 
flammatio]},  and  that  as  soon  as  the  cause,  the  inflam- 
mation, was  removed,  the  effect,  the  insane  ravings, 
would  cease. 

In  the  absence  of  generally  hnown  causes,  most 
people  would  pronounce  the  raving,  delirious  persons 
insane,  and  treat  them  accordingly,  simply  because 


54         MEDICO-LEGAL   EELATIONS   OF   INSANITY. 

the  symptoms  of  fever  and  inflammation  respec- 
tively were  absent,  and  there  was  no  physical  cause 
present  which  the  non-professional  observer  could 
detect  or  understand.  It  does  not  follow,  however, 
because  the  physical  cause  of  the  mental  disorder  has 
eluded  the  observation  of  the  unskilled,  that  it  does 
not  exist,  or  that  it  would  not  be  readily  recognized 
by  an  expert,  as  it  is  well  known  that  many  differen- 
tial indications,  too  subtile  for  the  non-professional 
eye,  guide  with  unerring  certainty  the  expert  in  de- 
termining the  exact  nature  of  disease.  That  fevers 
and  inflammations  during  certain  stages  of  those  dis- 
eases subordinate  the  mind,  producing  insane  ravings 
and  maniacal  delusions,  is  a  fact  established  beyond 
question.  No  person  thinks  of  the  delirium  of  fever 
as  evidence  of  insanity,  experience  for  thousands  of. 
years  having  taught  that  with  the  abatement  of  the 
fever  there  will  be  a  return  of  the  reason ;  hence  the 
lesson  taught  by  those  diseases  is  of  the  highest  im- 
portance in  studying  the  nature  of  insanity,  showing 
conclusively  as  it  does,  that  at  least  some  forms  of  men- 
tal alienation  are  the  result  of  purely  physical  causes  ; 
and,  it  being  established  that  even  a  single  class  of 
mental  derangements  is  the  result  of  physical  and 
not   mental   disease,   it   necessarily   follows    that   all 


"PHYSICAL   MEDIA   THEORY.  Oo 

others  may  be  and  are  likely  to  be  similarly  produced, 
unless  they  can  be  accounted  for  more  rationally  by 
some  other  established  theory,  and  that  more  rational 
theory  is  ivanthig.  But  strong  as  is  the  presumption, 
from  what  we  know  of  some,  that  all  forms  of  mental 
aberration  are  the  result  of  physical  disease  or  dis- 
order, "  ab  uno  disce  oimies"  yet  we  do  not  rest  the 
case  upon  that  evidence  alone.  It  may  be  claimed  by 
some  that  the  insane  ravings  and  delirium  of  fevers 
are  different  from  similar  insane  ravings  and  delirium 
which  they  allege  to  be  evidence  of  diseased  mind, 
because  the  other  indications  of  fever  are  wantin<r: 
if  so,  to  them  we  leave  the  task  of  explaining  what 
has  never  yet  been  explained — viz.,  in  what  the  dif- 
ference consists,  and  how  the  increased  temperature 
and  other  physical  symptoms  of  fever  affect  that  in- 
corporeal entity,  the  mind. 

§  19.  Disease  has  been  shown  to  furnish  strong 
proof  of  the  physical  origin  of  insanity ;  but  the  evi- 
dence from  our  remedies  for  disease  is  still  stronger, 
because  by  the  use  of  certain  drugs  known  to  the  pro- 
fession as  deliriants,  such  as  alcohol,  opium  and  its 
alkaloids,  hyoscyamus,  haschisch,  etc.,  we  can  at  will 
produce  the  maudlin  imbecility,  the  hallucinations,  the 
boisterous  maniacal  ravings,  and  the  wildest  delirium, 


56         MEDICO-LEGAL   RELATIONS   OF   INSANITY. 

the  complete  subordination  of  reason  and  judgment ; 
and  not  only  can  these  mental  phenomena  be  produced 
at  will,  and  continued  at  pleasure,  by  the  exhibition  of 
one  or  more  of  the  deliriants,  but  the  abnormal  mental 
manifestations  may  also  be  controlled  at  will  by  the 
administration  of  the  antidote  to  the  drug  used,  while 
long-continued  habitual  use  of  deliriants  invariably 
results  in  the  impairment  of  the  mental  faculties ;  of 
which  fact  we  have,  unfortunately,  proof  too  abundant 
and  convincing  in  the  persons  of  drunkards  and 
opium-eaters.  Again  we  ask,  "  Will  any  sane  person 
affirm  that  the  material  drugs  directly  affect  the  171- 
corporeal,  immaterial  mind  ?"  If  so,  to  such  persons 
we  leave  the  task  of  explaining  the  therapeutic  action 
of  deliriants. 

§  20.  Having  referred  to  some  of  the  evidences 
furnished  by  disease  and  by  drugs  of  the  physical 
causes  of  insanity,  the  dead  will  now  be  interrogated. 
Many  forms  of  insanity  can  now  be  at  once  recog- 
nized by  the  expeit  on  'post-mortem  examination  of 
the  nerve-centres  of  a  deceased  insane  person.  It  is 
not  generally  claimed  that  the  pathological  condition 
of  every  case  in  all  forms  of  insanity  could  now  be 
confidently  predicated.  It  should  be  borne  in  mind 
that  systematic  investigation  of  the  post-mortem  evi- 


"physical  media  theory."  57 

dences  of  insanity  is  yet  comparatively  in  its  infancy. 
Bueknill  and  Tuke  say/  "It  is  only  since  the  first 
edition  of  this  Manual  was  published,  fifteen  years 
ago,  that  the  old  belief  in  the  spiritual  nature  of  In- 
sanity has  utterly  died  out.  It  is  only  within  this 
recent  period  that  trustworthy  observations  have  been 
made  on  the  morbid  histology  of  the  brain,  and  even 
now  [1874]  next  to  nothing  is  known  of  its  chemical 
pathology.  But  ...  if  the  authors  should  live  to 
issue  another  edition,  they  confidently  hope  to  record 
that  the  veil  of  ignorance  has  been  rent  in  many  direc- 
tions, and  that  the  genesis  of  mind  and  its  diseases  is 
no  longer  perceived  as  a  general  fact,  but  in  its  detail 
as  a  great  and  growing  science."  And  the  same  emi- 
nent authors  have  admirably  portrayed  the  difficulties 
in  the  way  of  such  investigation,  many  of  which, 
however,  by  patient  labor  and  indefatigable  energy, 
have  already  been  overcome.  They  say,^  "  The  dif- 
ficulties arising  out  of  the  peculiarly  delicate  structure 
of  the  brain,  which  for  so  long  stood  in  the  way  of  the 
anatomist,  preventing  him  from  arriving  at  a  definite 
knowledge  of  the  histology  of  the  organ,  were  of  ne- 
cessity even  greater  stumbling-blocks  in  the  path  of 

'  Psychological  Medicine,  3d  ed.,  p.  610.  ^  Ibid.,  p.  612. 


58         MEDICO-LEGAL   EELATIONS   OF   INSANITY. 

the  pathologist.  The  double-bladed  knife  of  Valen- 
tine, which  had  aided  in  the  elucidation  of  the  healthy 
and  unhealthy  conditions  of  other  organs  of  the  body, 
failed  in  producing  sections  of  brain  sufficiently  thin 
for  submission  to  the  microscope,  and  it  was  not 
until  chemical  agency  was  employed  that  any  accu- 
racy was  obtained  in  our  knowdedge  of  the  relations 
of  its  complex  elements.  As  soon,  however,  as  it  was 
discovered  that  chemical  solutions  could  be  employed, 
which,  whilst  hardening  the  nervous  tissue,  did  not 
interfere  with  its  relative  structure,  a  host  of  observers 
broke  ground  in  this  yet  untrodden  field  of  anatomi- 
cal research.  In  Germany  the  researches  of  Arndt, 
Jacubowitsch,  Meynert,  Bischoff,  Stilling,  Schroeder 
van  der  Kolk,  Kolliker,  and  others  have  served  to 
place  the  anatomy  of  the  brain  on  almost  as  definite  a 
footing  as  that  of  any  other  organ  of  the  body,  whilst 
in  England  the  splendid  demonstrations  of  Lockhart 
Clarke  stand  pre-eminent.  The  pathologist  soon  fol- 
lowed in  the  track  of  the  anatomist,  and  although  it 
cannot  be  said  that  his  results  have  been  so  imme- 
diately brilliant,  it  cannot  be  denied  that  he  has  done 
most  important  work,  which  must,  when  further  pros- 
ecuted, react  on  physiology  and  anatomy." 

"  The  thorough  performance  of  a  post-mortem  ex- 


"physical  media  theory."  59 

amination  of  a  case  of  nervous  disease  is  a  long  and 
arduous  task ;  we  can  no  longer  depend  on  the  pound 
weight,  the  foot  rule,  or  the  naked  eye  as  guides  to  a 
knowledge  of  the  condition  of  the  unhealthy  brain, 
and  unless  the  microscope  is  brought  into  play  the 
autopsy  must  be  considered  imperfect."  ^ 

While  some  of  the  difficulties  attendant  upon  the 
minute  examination  of  the  brain  and  spinal  cord 
have  thus  been  suggested,  there  are  many  very  grave 
ones  that  have  not  even  been  hinted  at,  known  only 
to  those  who  have  themselves  made  systematic  in- 
vestigations of  the  subject,  or  who  have  carefully  fol- 
lowed the  reports  of  those  who  have.  To  afford  a 
faint  idea  of  the  painstaking  care,  the  varied  scien- 
tific aids,  the  delicacy  of  manipulation,  the  unwearied 
patience,  and  the  indomitable  perseverance  required 
in  the  investigations,  in  order  that  the  utmost  ac- 
curacy might  be  obtained,  we  quote  from  the  recent 
work  (American  reprint,  1882)  of  Dr.  Luys,  Phy- 
sician to  the  Hospice  de  la  SaljDetriere,  which  quo- 
tation reports  but  a  small  portion  of  tlie  difficulties 
overcome  and  the  labor  which  he  actually  performed. 
Speaking  of  the  method  he  employed  for  studying  the 

^  Psychological  Medicine,  3d  ed.,  p.  613. 


60         MEDICO-LEGAL   RELATIONS   OF   INSANITY. 

brain  and  spinal  cord,  he  says/  "  It  essentially  con- 
sists in  the  preparation  of  a  series  of  sections  made 
methodically,  millimetre  by  millimetre,  vertically, 
horizontally,  and  antero-posteriorly ;  and  these  sec- 
tions being  thus  made  according  to  the  three  dimen- 
sions of  the  solid  mass  which  was  to  be  studied, — in 
reproducing  them  photographically,  I  set  myself,  then, 
to  make  a  series  of  successive  horizontal  sections  of  the 
brain,  previously  hardened  in  a  chromic  acid  solution, 
from  apex  to  base,  at  intervals  of  about  one  milli- 
metre,'^ as  perfect  as  possible ;  each  being  in  its  turn 
reproduced  by  photography.  I  made  similar  sections 
of  the  brain  in  a  vertical  and  antero-posterior  direction, 
and  at  regular  intervals  from  behind  forwards.  These 
operations  having  been  thus  regularly  conducted,  this 
method  enabled  me  to  have  representations  of  the 
reality  as  exact  as  possible ;  to  keep  the  natural  rela- 
tions of  the  most  delicate  portions  of  the  nervous  cen- 
tres each  by  each  according  to  their  normal  connec- 
tions, and,  in  fact,  without  deranging  anything.  Thus, 
by  comparing  the  sections,  horizontal  or  vertical,  one 
with  another,  I  could  follow  a  given  order  of  nerve- 


^  The  Brain  and  its  Functions,  Luys,  pp.  6,  7,  8. 
2  =  .03937  of  an  inch. 


"  PHYSICAL    MEDIA   THEORY.''  61 

fibres  in  its  progress,  see  its  point  of  origin  and  its  point 
of  termination,  study  the  natural  increase  in  complex- 
ity of  the  different  kinds  of  nerve-fibrils,  millimetre  by 
millimetre,  changing  nothing,  lacerating  nothing,  and 
leaving  everything  pretty  much  in  its  normal  position. 
By  means  of  these  new  photographic  methods  of  re- 
production" (previously  described), "  which  are  all  the 
more  j^recise  because  impersonal,  I  had  only,  then, 
to  register  the  details  the  sun  himself  had  printed,  to 
place  the  prints  in  juxtaposition,  to  compare  them  or.e 
with  another,  and  thus  to  make  a  single  synthesis  of 
the  multiple  elements  of  analysis  I  had  thus  obtained 
by  the  automatic  co-operati?)n  of  the  light.     The  gen- 
eral view  of  cerebral  topography  having  thus  been 
fixed  by  these  processes,  the  regions  of  more  delicate 
texture,  the  special  points  which  it  was  necessary  to 
study  in  their  minute  elements,  were  further  suffi- 
ciently magnified  and  reproduced,  with  successively 
increasing  powers.     I  could  thus  render  visible  to  the 
naked  eye,  and  exhibit  on  a  plan,  details  of  structure 
which  up  to  that  time  had  only  been  seen  in  isolation 
under  the  tube  of  the  microscope.     By  this  means  the 
mind  of  the  observer,  penetrating  successively  from 
the  known  to  the  unknown,  from  well-defined  regions 
to  those  which  are  not  so  as  yet,  can  easily  make  itself 


62  MEDICO-LEGAL   RELATIONS   OF   INSANITY. 

familiar  with  the  details  of  the  minute  structure  of  the 
final  nerve-elements." 

The  intention  here  is  simply  to  direct  attention 
to  the  methods  of  observation,  as  those  researches, 
being  of  recent  date,  are  not  so  commonly  known 
as  the  more  prominent  indications  of  the  origin  of 
disordered  mental  manifestations,  disease,  drunkenness, 
etc. 

The  limits  of  this  work  will  not  permit  any  ap- 
j^roach  to  a  detailed  report  in  the  successive  stages  in 
the  chain  of  investigation  by  which  the  conclusions 
have  been  reached,  pointing  out  the  characteristic 
changes  which  unerringly  indicate  that  the  brain  be- 
longed to  an  insane  person,  and  not  only  the  generic 
fact,  but,  with  few  exceptions,  the  class,  as  well  as  the 
family ;  therefore  reference  will  be  made  to  a  few 
well-authenticated  conclusions. 

§  21.  Dr.  Maudsley  says,^  "Let  it  suffice  here  to 
say  that  Schroeder  van  der  Kolk  could  venture  to 
assert  that  he  nevei'  failed  to  discover  morbid  changes 
of  structure  in  insanity,  and  that,  when  intellectual 
disorder  especially  had  existed  he  had  found  the 
cortical  layers  under  the  frontal  bones  to  be  darker 

^  Physiology  of  Mind,  p.  124. 


"physical  media  theory."  63 

colored,  more  firmly  connected  witli  tlie  pia  mater, 
or  softened ;  in  melancholia,  on  the  other  hand,  where 
the  feelings  mainly  were  excited  or  depressed,  the 
pathological  changes  were  found  principally  in  the 
convolutions  of  the  upper  and  hind  lobes.  In  old 
age,  when  the  memory  fails,  he  found  the  cells  of 
the  cortical  layers  visibly  atrophied." 

Professor  Bain,  who,  as  before  stated,  is  not  in  ac- 
cord with  the  somatic  theory,  says,^  "  The  association 
of  brain-derangement  with  mind-derangement  is  all 
but  a  perfectly-established  induction.  In  the  great 
mass  of  insane  patients  the  alteration  of  the  brain 
is  visible  and  pronounced.  I  may  quote  as  evidence 
on  this  head  a  pamphlet  by  Drs.  J.  B.  Tuke  and 
Rutherford  '  On  the  Morbid  Appearances  met  with  in 
the  Brains  of  Thirty  Insane  Persons.'  The  brains 
examined  were  those  of  patients  whose  deaths  occurred 
consecutively,  and  were  in  no  way  picked  on  account 
of  any  peculiarity.  The  forms  of  disease  exemplified  ^^ 
were  general  paralysis,  dementia  with  paralysis, 
chronic  dementia,  epileptic  insanity.  In  every  case 
there  was  noticed  a  marked  departure  in  one  form 
or  another  from  the  healthy  structure  of  the  brain, 

^  Bain,  Mind  and  Body,  p.  14. 


64         MEDICO-LEGAL   RELATIONS   OF   INSANITY. 

The  authors  enumerate  nine  species  of  morbid  changes 
discovered  by  microscopical  examination.  The  occur- 
rence of  a  case  that  presented  no  visible  derangement 
would  not  be  a  conclusive  exception,  inasmuch  as 
there  may  be  alterations  of  substance  that  are  not 
visible.  It  is  believed,  however,  that  in  all  cases  of 
pronounced  mental  aberration  disease  of  the  brain  is 
present  in  a  marked  form." 

That  recent  research  in  the  pathology  of  the  nerve- 
centres  is  of  great  importance,  and  that  among  other 
uses  it  has  furnished  strong  proof  of  the  physical 
cause  of  insanity,  cannot  be  denied;  and  we  think 
there  is  little  hazarded  in  predicting  that  in  the  near 
future  the  classification  of  the  pathological  conditions 
on  which  every  form  of  insanity  depends  will  be  as 
complete  and  as  well  known  to  experts  as  are  now 
the  indications  of  the  various  diseases  of  the  kidneys, 
and  by  the  same  agencies,  chemistry  and  the  micro- 
scope. 

But  in  "  interrogating  the  dead,"  to  have  evidence 
of  a  most  conclusive  character  we  are  under  no  neces- 
sity whatever  to  use  obscure,  partial  derangements  of 
the  brain,  however  strong  the  proof  may  be  that  is 
furnished  by  them,  as,  if  an  adult  human  brain  weighs 
less  than  thirty  ounces,  it  is  prima  facie  evidence  that 


"physical  media  theoey."  65 

the  person  was  an  imbecile}     To  this  rule,  we  believe, 
there  has  been  no  exception  observed} 

The  average  weight  of  a  male  (European)  brain  is 
about  forty-nine  and  one-half  ounces,  that  of  females 
about  forty-four  ounces,  while  the  maximum  we  be- 
lieve is  sixty-four  and  one-half  ounces  (that  of  Baron 
Cuvier).  Daniel  Webster's  was  fifty-three  and  one- 
half  ounces,  while  the  minimum,  those  of  imbeciles,, 
range  from  thirty  ounces  to  eight  and  one-half  ounces^. 
To  have  a  little  less  than  half  the  weight  of  Cuvier's, 
or  a  little  more  than  half  the  weight  of  Webster's 
brains,  is  to  be  hopelessly  an  imbecile.  Mark  the  as- 
tounding difference,  the  immeasurable  distance,  be- 
tween the  intellectual  power  of  a  Cuvier  or  a  Webster 
and  the  total  lack  of  intellectual  power  of  an  imbecile, 
and  the  only  reason  for  the  difference  of  which  we 
have  any  knowledge  is  the  lack  of  a  few  ounces  of 
brain !  It  matters  not  that  the  cerebral  light-weight 
grows  and  develops  physically ;  that  his  vocal  cords 
are  in  order — he  can  speak ;  that  his  senses  are  all 

^  Turner's  Anatomy,  vol.  i.  p.  298, 

*  The  nearest  approach  to  an  exception  is  the  marvellous  case  re- 
ported by  Professor  Cardona,  that  of  Antonia  Grandoni,  who  died  at 
the  age  of  forty-two  years,  whose  brain  weighed  only  two  hundred  and 
eighty-nine  grammes  (a  little  more  than  nine  ounces),  and  yet  in  her 
lifetime  she  exhibited  some  mental  power. 


66         MEDICO-LEGAL   EELATIONS   OF   INSANITY. 

present ;  if  his  brain  weighs  less  than  thirty  ounces, 
intellectual  growth  or  development  is  impossible.  It 
will  be  observed  that  whether  the  maximum  brain  of 
the  imbecile  is  thirty,  or,  three  ounces,  would  not  at 
all  affect  the  argument,  if  it  be  granted  that  there  is  a 
fixed  weight,  below  which  there  can  be  no  intellectual 
ability.  Will  those  who  hold  that  the  mind  is  superior 
to,  and  wholly  independent  of,  the  body,  that  the  body 
is  an  "  incumbrance,"  a  "  clog,"  a  "  hindrance,"  to  its 
empyrean  soaring,  please  explain  what  possible  differ- 
ence it  can  make  whether  that  body,  of  which  it  is 
entirely  independent,  has  six  ounces  or  sixty  ounces 
of  a  merely  material  substance  called  the  brain  ? 

§  22.  Many  of  the  ablest  psychologists  of  the  day 
admit  that  the  brain  is  the  organ  of  mind,  that  the 
mind  operates  only  through  physical  media.  Profes- 
sor Calderwood,  one  of  the  most  astute  and  determined 
opponents  of  the  somatic  theory,  in  his  work  written 
expressly  to  refute  the  materialistic  theory  of  mind, 
says,^  "  We  have  come  even  systematically  to  speak 
of  'mental  diseases'  and  their  treatment,  as  if  the 
phrase  were  the  apj)ropriate  designation  in  the  cir- 
cumstances.    Yet  it  is  singularly  inappropriate,  ex- 

-■  Pvelations  of  Mind  and  Brain  (London,  1879),  p.  363. 


"physical  media  theory."  67 

cept  in  the  vocabulary  of  those  with  whom  brain  dis- 
order and  disorder  of  mind  are  synonymous.  The 
closeness  of  relation  between  mind  and  brain — the 
admitted  fact  that  disturbance  of  the  one,  as  a  rule, 
involves  disturbance  of  the  other — may  sufficiently  ac- 
count for  conventional  usage.  But  the  power  of  con- 
ventionalism is  the  only  explanation  of  the  persistence 
of  the  phrase  '  mental  diseases'  to  describe  a  class  of  dis- 
orders as  ti'uly  physical  as  disorders  of  the  eye  or  ear" 
The  same  author  quotes  approvingly  Dr.  Ferrier's 
statement,^  "  That  the  brain  is  the  organ  of  mind  no 
one  doubts;  and  that,  when  mental  aberrations,  of 
whatever  nature,  are  manifested,  the  brain  is  diseased 
organically  or  functionally,  we  take  as  an  axiom." 
The  same  distinguished  writer  gives  the  post-mortem 
evidences  in  five  cases,  and  draws  the  following  con- 
clusions:^ "These  five  cases  may  be  taken  as 
marked  illustrations  of  the  condition  of  brain  in 
persons  said  to  be  suffering  under  mental  derange- 
ment. Disease  has  been  established  in  that  orsfan" 
(the  brain)  "  by  means  of  which  alone  it  is  possible 
for  the  mind  to  control  and  govern  bodily  actions  and 
tendencies."     Again,^  "  The  sufferer  under  delusion 

^  Relations  of  Mind  and  Brain  (London,  1879),  p.  364. 
2  Ibid.,  p.  378.  3  Ibid.,  p.  385. 


68         MEDICO-LEGAL   EELATIOISTS   OF   INSANITY. 

reasons  accurately  on  tlie  suppositions  adopted  by 
him  to  account  for  his  experience.  No  one  would 
propose  to  deal  argumentatively  with  his  case.  His 
whole  intellectual  process  is  in  harmony  with  intel- 
lectual law  as  recognized  and  applied  by  others ;  the 
delusion  is  a  product  of  brain  state,  and  can  be  influ- 
enced or  removed  only  by  medical  treatment."  Many 
other  authorities  might  be  quoted  to  prove  the  patho- 
logical character  of  the  so-called  diseases  of  the  mind 
by  post-mortem  evidence,  but  we  think  those  already 
referred  to  sufficient;-  and  more  of  the  same  import 
would  probably  fail  to  satisfy  those,  if  any,  who  are 
yet  unconvinced. 

Let  it,  however,  be  assumed  that  there  may  be  a 
few  cases  of  insanity  which  could  not  at  present  be 
detected  by  post-mortem  examination,  that  would  not 
necessarily  show  the  proposition  to  be  untrustworthy, 
— viz.,  that  insanity  is  a  disease  physical  in  its  origin 
and  character, — but  instead  would  show  our  lack  of 
investigating  ability.  There  are  a  few  causes  of  death 
unconnected  with  insanity  that  leave  no  morbid  anat- 
omy, so  far  as  the  pathologist  has  yet  been  able  to 
discover, — no  post-mortem  evidence  which  would  ac- 
count for  the  loss  of  life.  In  those  cases,  which  would 
be  the  more  reasonable  conclusion,  that  the  j^erson 


""physical  media  theory."  69 

did  not  die  of  any  disease,  or,  that  disease  had  been 
present,  but  its  traces  were  so  faint  as  to  elude  our 
powers  of  detection  ? 

§  23.  We  think  sufi&cient  evidence  has  ah*eady\ 
been  educed  to  show  that  insanity  is  a  physical,  not  a 
mental,  disease,  and  yet  the  proof  par  excellence  re- 
mains to  be  offered.  We  have  taken  considerable 
trouble  to  acquaint  ourselves  with  the  facts,  and  we 
believe  that  there  is  not  an  Alienist  in  the  United 
States  who  believes  that  i?isanity  is  a  disease  of  the 
mind.  The  medical  superintendents  of  asylums  for 
the  insane,  so  admirably  prepared  by  education  and 
professional  knowledge,  and  from  the  large  numbers 
of  insane  persons  under  their  care,  having  the  best 
possible  opportunities  for  the  study  of  their  specialty, 
both  theoretically  and  j)ractically,  ouglit  to  be  consid- 
ered as  speaking  ex  cathedra  on  the  question.  If  they 
do  not  know  all  that  is  to  be  known,  they  do  know 
all  that  is  knoion  of  the  subject,  and  therefore  their 
united  testimony  ought  to  be  regarded  as  conclusive. 
These  gentlemen  all  believe  insanity  to  be  physical, 
not  mental,  disease,  and  depend  lar^^ely  upon  the  ju- 
dicious administration  of  material  remedies  for  the  > 
cure  of  the  insane.  If  any  evidence  were  wanting  to 
show  the  fact  that  the  superintendents  of  asylums  for 


70  MEDICO-LEGAL    EELATIONS    OF   INSAIS^TY. 

tlie  insane  are  believed  to  have  a  sujDerior  special 
knowledge  of  insanity,  we  know  of  no  stronger  prac- 
tical proof  than  the  fact  that  there  are  such  State  Asy- 
lums; and  that  those  gentlemen  are  the  superinten- 
dents thereof.  The  present  is  an  eminently  practical 
age,  consequently  not  disposed  to  take  much  trouble, 
or  to  expend  much  treasure  on  speculative,  abstract 
hypotheses.  What  are  the  facts  regarding  insane 
asylums  ?  Are  the  millions  of  dollars  spent  on  their 
erection  a-nd  equipment  and  the  large  annual  outlay 
for  their  maintenance  evidences  of  reckless  folly  on 
the  part  of  the  several  States,  or  are  they  the  highest 
evidences  of  enlightenment  of  a  humane  peoj^le  in 
their  rational  care  of,  and  j)rovision  for,  a  sorely 
afflicted  class  of  citizens?  The  confidence  with  which 
all  classes  regard  the  asylums  as  places  where  the  in- 
sane will  receive  the  best  care  and  the  most  scientific 
professional  treatment  from  the  medical  superinten- 
dents and  their  assistants,  together  with  the  large 
sums  voted  year  after  year  for  their  support,  proves  at 
once  the  beneficence  of  such  institutions,  and  furnishes 
the  strongest  practical  proof  of  the  high  estimation 
in  which  medical  superintendents  of  insane  asylums, 
as  a  class  in  their  specialty,  are  held  by  the  people. 
24.  It  may  be  urged  that  while  strong  proof  has 


e 


"physical  media  theory."  71 

been  offered  in  support  of  tlie  tlieory  that  the  mind 
is  not  diseased  in  the  insane,  yet  the  proof  has  not 
amounted  to  a  positive  demonstration.  That  objec- 
tion is  admitted ;  as  we  believe  a  demonstration  in  the 
premises  to  be  impossible,  because  it  implies  proving 
a  negative,  of  the  subject  of  which  proposition  we 
have  not  and  cannot  have  any  'primary  evidence.  It 
is  not,  however,  always  necessary  to  demonstrate  a 
proposition  before  we  can  accept  it  as  true.  A  propo- 
sition  must  be  accepted  as  true  wlien  the  mind  cannot 
conceive  of  its  negation  by  facts  or  science.  It  may 
not  be  susceptible,  from  its  very  nature,  of  demonstra- 
tion, and  yet  be  an  admitted  truth  to  our  conscious- 
ness. We  cannot  demonstrate  the  existence  of  the 
chemical  atom,  yet  we  firmly  believe  the  atomic  the- 
ory based  upon  it.  We  cannot  demonstrate  the  origin 
of  either  matter  or  mind,  nor  what  they  are,  and  yet 
a  man  would  be  accounted  insane  who  should  deny 
the  existence  of  either ;  in  fact,  the  propositions  which 
can  be  demonstrated  are  few  indeed,  compared  to  our 
beliefs.  All  men  accept  many  such  undemonstrable, 
but  nevertheless  irrefutable,  truths,  and  we  respect- 
fully submit  that  the  proofs  offered,  showing  that  in- 
sanity is  not  a  disease  of  the  mind,  could  not  be 
stronger,  unless  by  absolute  demonstration. 


72         MEDICO-LEGAL   EELATIONS   OF   INSANITY. 

It  has  been  shown  from  the  physical  evidence  of 
the  feelings  and  emotions ;  from  the  effects  of  fevers 
and  inflammations  on  the  mind ;  from  the  effects  of 
medicines  given,  in  producing  and  preventing  insane 
delusions  and  maniacal  ravings ;  from  the  effect  of 
material  remedies  on,  and  their  power  in  curing,  some 
forms  of  pronounced  insanity ;  from  post-mortem  evi- 
dences; from  the  impossibility  of  reconciling  partial 
insanity ;  and  from  the  unanimous  opinion  of  alien- 
ists, that  the  psychical  or  metaphysical  theory  of  in- 
sanity cannot  he  maintained;  and  from  such  showing 
ive  claim  that  the  '^physical  media  theory"""*  has  been 
fully  established,  and  the  following  is  offered  as  a 
definition  of  insanity :   A  diseased  oe.  disokdeked 

CONDITION,  OR  MALFORMATION,  OF  THE  PHYSICAL 
ORGANS  THROUGH  WHICH  THE  MIND  RECEIVES  IM- 
PRESSIONS, OR  MANIFESTS  ITS  OPERATIONS,  BY  WHICH 
THE  WILL  AND  JUDGMENT  ARE  IMPAIRED,  AND  THE 
CONDUCT    RENDERED    IRRATIONAL.       And    aS    a    COrol- 

lary  we  offer :  Insanity  being  the  result  of  physical 
disease,  it  is  a  matter  of  fact  to  be  determined 
by  medical  experts,  not  a  matter  of  law  to  be 
decided  by  legal  tests  and  maxims. 


CHAPTER    III. 

THE   SOMATIC   THEOKY. 

In  considering  Insanity  a  Physical  Disease  the  "  Somatic  and  Physi- 
cal Media  Theories"  are  in  Accord — Important  Points  of  Differ- 
ence between  the  Theories — Mind  not  necessarily  a  Brain  Func- 
tion, because  it  is  obliged  to  use  the  Brain  in  its  Manifestations — ■ 
Which  is  Precedent  and  which  Consequent — Somatists  deny  the 
Existence  of  Free  "Will — Heredity  determines  irresistibly  the 
Character — Cannot  even  will  against  it — There  can  be  no  Crime 
■where  there  is  no  Free  Will — If  the  Effect  of  Hereditary  Neuroses, 
Crime  is  not  Guilt  to  the  Perpetrator — Heredity  considered — ^Ef- 
forts to  obtain  Trustworthy  Data — Heredity  supported  by  the 
"  Evolution  Theory" — Evolution  Theory  defective — Defects  con- 
sidered— Physical  Development  of  Thought  Hypothesis  examined 
— Scientific  Demonstrations  not  always  Trustworthy — Conclusions 
reached. 

§  25.  The  "somatic  theory"  will  now  be  briefly 
discussed ;  briefly,  not  because  it  is  intrinsically  un- 
worthy of  consideration  at  greater  length,  but  because, 
like  the  "  physical  media  theory,"  it  treats  insanity  as 
a  physical  disease ;  hence  in  that  most  important  re- 
spect, in  their  "medico-legal  relations,"  there  is  no 
practical  difierence  between  them.  In  following  the 
two  theories,  however,  to  their  ultimate  conclusions, 
there  are  difierences,  and  some  of  the  more  important 
of  them,  chiefly  the  "  freedom  of  the  will"  and  "  moral 

73 


74         MEDICO-LEGAL   RELATIONS   OF   IlS^SAlSriTY. 

insanity,"  will  be  considered,  as  those  questions  di- 
rectly and  most  importantly  affect  the  jurisprudence 
of  insanity. 

§  26.  It  does  not  necessarily  follow  because  the 
mind  is  indebted  to  the  body  for  the  media  of  mani- 
festing its  operations,  whether  the  manifestations  are 
normal  or  abnormal,  that  the  mind  must  therefore  be 
a  product  or  function  of  the  body,  or  of  any  part  of  it. 

Granted  that  cerebral  disintegration  is  as  much  a 
condition  of  mental  manifestations  as  muscular  decay 
is  of  muscular  contraction ;  that  does  not  determine 
which  is  the  precedent  and  which  the  consequent; 
does  not,  in  other  words,  determine  whether  the  cere- 
bral disintegration  is  the  cause,  the  accompani7nent, 
or  the  effect  of  the  mental  manifestations,  or,  from  the 
fact  of  its  intimate  association  with  matter,  does  not 
prove  that  "  mind  is  a  function  of  matter,"  or  that 
"  matter  is  a  realization  of  mind." 

The  products  of  retrograde  metamorphosis  or  cere- 
bral disintegration,  are  lactic  acid,  kreatin,  uric  acid, 
hypoxanthin,  formic  and  acetic  acids.  These  mate- 
rial products  are  not  the  constituents  or  attributes  of 
mind,  and  therefore  do  not,  as  an  analysis,  prove  that 
nerve  change  precedes  mental  action. 

Kegarding  mind  as  a  function  of  the  brain  neces- 


THE   SOMATIC   THEORY.  75 

sarily  precludes  the  possibility  of  an  independent  will. 
In  the  following  discussion  of  the  will,  reference  will 
be  made  almost  exclusively  to  the  works  of  Dr. 
Maudsley,  whom  we  regard  as  the  best  exponent  of 
the  somatic  view  of  that  subject,  as  well  as  the  ablest 
writer  of  the  age  on  psycho-physiology.  He  says,^ 
"  The  history  of  a  man  is  plainly  the  truest  revelation 
of  his  character,  for  what  he  has  done  indicates 
what  he  has  willed ;  what  he  has  willed  marks  what 
he  has  thought  and  felt,  or  the  character  of  his  delib- 
erations and  feelings ;  what  he  has  thought  and  felt 
has  been  the  result  of  his  nature  then  existing  as  the 
developmental  product  of  a  certain  original  construc- 
tion and  a  definite  life  experience.  .  .  .  The  fashion- 
ing of  the  will  is  the  fashioning  of  the  character,  and 
this  can  only  be  done  indirectly  by  fashioning  the 
circumstances  which  determine  the  manner  of  its  for- 
mation. But  however  formed,  it  is  the  character 
which  determines  what  the  inclination  shall  prompt 
as  most  desirable,  the  judgment  decide  to  be  most 
eligible,  and  the  will  carry  into  effect.  If  it  were 
possible  for  any  one  to  enter  thoroughly  into  the 
inmost  character  of  another  person,  and  to  become 

*  Physiology  of  Mind,  p.  449. 


76         MEDICO-LEGAL   EELATIOIfS   OF   INSANITY. 

exactly  acquainted  with  the  moving  springs  of  his 
conduct  in  his  particular  relations  of  life,  it  would  be 
possible  not  only  to  predict  his  line  of  action  on  every 
occasion,  but  even  to  work  him,  free  will  notwith- 
standing, like  an  automaton,  by  playing  on  his  pre- 
dominant passions,  interests,  or  principles." 

Again :  ^  "  There  is  a  destiny  made  for  a  man  by 
his  ancestors,  and  no  one  can  elude,  ivere  he  able  to 
attempt  it,  the  tyranny  of  his  organization." 

Again :^  "At  the  end  of  all  the  most  subtile  and 
elaborate  disquisitions  concerning  moral  freedom  and 
responsibility,  the  stern  fact  remains  that  the  inherit- 
ance of  a  man's  descent  weighs  on  him  through  life  as 
a  good  or  a  bad  fate.  How  can  he  escape  from  his 
ancestors?  Stored  up*  mysteriously  in  the  nature 
which  they  transmit  to  him,  he  inherits  not  only  the 
organized  results  of  the  acquisitions  and  evolution  of 
generations  of  men,  but  he  inherits  also  certain  in- 
dividual peculiarities  or  proclivities  which  determine 
irresistibly  the  general  aim  of  his  career.  While  he 
fancies  that  he  is  steering  himself,  and  determining  his 
course  at  will,  his  character  is  his  destiny.^    The  laws 

^  Maudsley,  Responsibility  in  Mental  Diseases,  p.  22. 

*  Maudsley,  Body  and  Mind,  pp.  164-65. 

'  The  italics  in  the  above  quotations  are  mine. — Aitthor. 


THE   SOMATIC    THEORY.  77 

of  liereditary  transmission  are  cliarged  with  tlie  des- 
tinies of  mankind — of  the  race,  and  of  the  individual." 
§  27.  To  what  practical  conclusion  does  this  doc- 
trine tend,  if  not  to  absolute  irresponsibility  ?  If  it  is 
true  that  a  man  has  no  free  will,  no  ability  to  "  steer 
himself  or  determine  his  course,"  is  not  even  able  to 
attempt  to  elude  the  "  tyranny  of  his  organization,"  is 
"  wrought  like  an  automaton"  by  a  force  that  he  can- 
not even  attempt  to  control,  then  he  cannot  commit 
any  crime ;  be  he  sane  or  insane,  he  is  irresponsible 
for  his  every  act,  because  no  man  can  be  held  respon- 
sible, either  morally  or  legally,  for  any  act  or  deed 
perpetrated  which  he  was  wholly  unable  to  prevent. 
There  can  be  no  crime  in  any  act  done  which  is  the 
result  of  an  all-powerful  coercion.  Responsibility  for, 
presupposes  ability  to  avoid  committing,  the  crime.  It 
may  be  true  in  a  general  sense  that  '^  There's  a  divin- 
ity that  shapes  our  ends,"  but  in  the  same  general 
sense  it  is  quite  as  true  that  "  every  man  is  the  archi- 
tect of  his  own  fortune,"  that  man  botli  modifies  and 
is  modified  by  his  organization.  If  a  person  has  no 
"  free  will,"  by  which  he  is  able  to  choose  the  good 
and  reject  the  evil ;  if  his  choice  is  predetermined  for 
him  by  "  hereditary  transmission  of  character,"  or  by 
any  other  irresistible  force,  which  for  the  individual 


78         MEDICO-LEGAL    RELATIONS   OF   INSANITY. 

^' is  his  destiny,"  then  the  irresistible  force  or  tlie 
destiny,  not  the  individual,  is  responsible.  If  the  co- 
ercion is  absolute,  the  kind  of  force  employed  is  un- 
important ;  it  is  also  immaterial  whether  the  coercion 
is  from  within  or  from  without — whether  the  coercing 
power  is  the  irresistible  strength  of  a  giant  guiding 
and  impelling  the  hand  and  dagger,  or  the  equally 
irresistible  force  of  hereditary  taint;  which,  for  the 
individual  is  said  to  constitute  his  destiny,  against  the 
power  of  which  he  is  unable  even  to  attemj^t  resist- 
ance; in  either  case  (if  the  latter  is  admitted)  the 
irresponsibility  must  be  as  absolute  as  the  coercing 
power. 

Should  the  doctrine  ever  be  generally  believed  that 
our  "  free  will"  is  entirely  subordinated  to  our  charac- 
ters hereditarily  transmitted  to  us,  which  character  is 
to  each  individual  a  destiny,  against  which  he  cannot 
even  attempt  resistance,  then  our  jails  and  State 
prisons  should  be  changed  to  hospitals,  and  instead 
of  thinking  or  speaking  of  the  commission  of  crimes, 
and  the  punishment  of  the  perpetrators,  criminal  acts 
will  be  considered  as  symptoms  of  a  disease  called 
criminal  neurosis;  our  courts  of  justice  will  have  to 
be  abolished,  as  instead  of  being  tried  and  punished 
for  di.^lionesty  or  crime,  the  person  would  be  sent  to 


THE   SOMATIC   THEOEY.  79 

the  hospital  for  incurables,  suffering  from  the  grievous 
disease  known  to  the  profession  of  that  day  as  "  he- 
reditarily transmitted  dishonest  or  criminal  character." 
These  conclusions  appear  to  approach  the  reductio  ad 
absurdum,  and  yet  we  claim  for  the  deductions  that 
they  are  legitimate ;  that  if  the  premises  be  granted, 
the  conclusion  is  inevitable. 

§  28.  The  important  question  is  here  forced  upon 
us,  "Is  it  really  true  that  the  character  and  destiny 
of  every  person  is  irrevocably  made  for  him  by  his 
ancestors?"  Has  that  proposition  ever  been  demon- 
strated, or,  if  undemonstrable,  has  such  proof  been 
offered  that  the  "  mind  cannot  think  of  its  negation 
by  facts  or  science"  ?  Neither  of  these  questions  can 
be  answered  in  the  affirmative. 

That  there  is  hereditary  transmission  to  some  extent 
all  physiologists  and  pathologists  admit,  but  the  point 
of  limitation  is  an  open  question.  The  great  body  of 
physiological  observers,  however,  and  among  them 
some  of  the  ablest  and  most  earnest  workers,  do  not 
claim  for  it  any  such  limitless  power  over  character 
and  conduct.  In  the  extreme  views  under  considera- 
tion the  dominating  influence  of  heredity  is,  we  think, 
vastly  overrated,  while  its  correctives — association, 
education,  and  training — are  either  quite  ignored,  or 


80         MEDICO-LEGAL   RELATIONS   OF   INSANITY. 

as  mucli  underrated ;  and  the  facts,  as  far  as  we  have 
been  able  to  collate  them  from  foundling  hos^Ditals 
and  kindred  institutions,  prove  the  correctness  of  our 
opinion.  It  is  much  to  be  regretted  that  fuller  rec- 
ords are  not  kept  of  the  parentage  and  character  i7i 
after-life  of  the  waifs  and  foundlings  that  receive 
care,  instruction,  and  training  in  children's  hospitals 
and  juvenile  reformatories,  as  such  carefully  kept  rec- 
ords would  go  far  to  settle  the  vexed  question  of  how 
far  proper  surroundings,  education,  and  moral  train- 
ing will  counteract  an  hereditarily  vicious  disposition ; 
and  we  confidently  expected  to  present  here  tabulated 
returns  of  the  after-lives  of  all  classes  of  parentage, 
good,  bad,  and  indifferent,  from  a  sufficient  number  of 
"homes,"  "orphan  asylums,"  "foundling  hospitals," 
etc.,  that  at  least  an  approximate  reliability  might 
have  been  secured  as  to  the  power  of  education  and 
moral  influence  in  infancy  and  youth  to  correct  an- 
cestral tendency  to  vice  and  crime,  but  as  we  have 
not  yet  received  a  sufficiently  large  number  of  fully 
authenticated  cases  to  warrant  our  drawing  positive 
conclusions  from  them,  we  have  decided  to  postpone 
the  tabulation  for  the  present.  There  are,  unfortu- 
nately, comparatively  few  among  the  benevolent  soci- 
eties   and    institutions   for   the  care   of    foundlings, 


THE   SOMATIC    THEORY.  81 

orphans,  etc.,  that  keep  their  records  with  sufficient 
accuracy  and  fuhiess  to  furnish  trustworthy  informa- 
tion of  the  kind  required,  while  many,  some  of  them 
very  extensive  ones,  such  as  that  under  the  care  of  the 
Rev.  George  Miiller,  of  Bristol,  England,  have  no 
records  of  the  kind  required  at  all.  Many  such  in- 
stitutions have  promised  to  adopt  such  regulations  as 
will  for  the  future  enable  them  to  speak  with  certainty 
of  the  conduct  of  many  of  their  wards  after  they 
shall  have  been  removed  from  their  guardianship  (the 
j)art  most  deficient  at  present),  and  therefore  in  the 
not  distant  future  we  hope  to  be  able  to  offer  some- 
thing more  satisfactory  than  opinion  against  opinion; 
on  this  most  important  subject. 

§  29.  The  "theory  of  evolution"  is  also  largely 
taxed  to  prove  the  correctness  of  the  somatic  theory.. 
The  world  is  unquestionably  largely  indebted  to  the- 
patient,  laborious,  painstaking  scientific  investigators- 
who  have  been  interrogating  nature,  determined  on- 
solving  the  problem  of  evolution.  While,  however, 
we  thankfully  acknowledge  the  advancement  of  sci- 
ence from  their  indefatigable  exertions,  and  while  we 
receive  their  verified  facts  with  gratitude,  we  know  of 
no  reason  why  we  should  be  obliged  to  accept  their- 
deductions,  assumptions,  and  speculations  as  a  part  of 

6 


82  MEDICO-LEGAL    EELATIOISrS    OF   USTSANITY. 

the  new  gospel,  and  of  these  the  theory  of  evolution,  is 
as  yet  largely  composed ;  neither  are  we  required  to 
accept  the  theory  of  evolution,  nor  any  other  theory, 
as  proof  of  any  proposition  until  that  theory  shall 
have  been  fully  established.  No  attempt  will  be 
made  here  to  consider  the  theory  of  evolution  further 
than  to  state  briefly  what  is  claimed  for  it,  and  one  or 
two  objections  from  among  many  which,  while  they 
remain,  are  fatal  to  its  being  considered  an  established 
theory. 

Briefly  stated,  the  believers  in  the  theory  of  evolu- 
tion claim  that  there  was  a  time  when  "  the  existing 
world  lay  potentially  in  the  cosmic  vapor,"  After 
the  lapse  of  an  indefinite  time,  protoplasm  was  formed, 
which  gradually  evolved  the  higher  forms  of  vegetable 
life,  and  from  vegetable  life  the  lower  forms  of  animal 
life,  and  by  natural  selection,  or  "  the  survival  of  the 
fittest,"  man,  the  highest  form  of  evolutional  develop- 
ment, came  into  existence. 

Professor  Huxley,  one  of  the  ablest  and  most  astute 
champions  of  evolution,  in  his  "  Lay  Sermons,"  says, 
"  The  man  of  science  has  learned  to  believe  in  justifi- 
cation, not  by  faith,  but  by  verification."  And  with 
this  opinion  Professor  Tyndall  agrees:  "Without 
verification  a  theoretic  conception  is  a  mere  figment 


THE   SOMATIC   THEORY.  83 

of  the  intellect."  Now,  it  will  be  at  once  seen  that 
two  of  the  most  important  dogmas  of  this  theory,  the 
two  pillars  on  which  it  chiefly  rests, — "  Spontaneous 
Generation"  and  "Transmutation  of  Species," 
have  neither  of  them  been  verified  by  facts.  These 
are  not  by  any  means  the  only  missing  links  in  the 
chain  of  evolution,  but  reference  here  will  be  confined 
to  them  as  all  that  is  necessary  for  our  purpose,  for 
without  them  the  theory  of  evolution  cannot  be  estab- 
lished, either  of  them  being  a  sine  qua  non. 

Taking  into  account  the  aggressive  positiveness  with 
which  many  of  the  apostles  of  evolution  hurl  its  con- 
clusions, as  if  they  were  infallible,  against  all  and 
sundry  who  do  not  espouse  the  new  doctrine,  it  would 
hardly  be  suj^posed  that  for  those  conclusions  tliey 
were  so  largely  indebted  to  the  hypothetical. 

Let  it  be  remembered  that  every  conclusion,  accord- 
ing to  the  theory  of  evolution,  in  which  man  is  in  any 
way  affected  is  largely  made  up  of  assumptions,  many 
of  which  assumptions  are  ivholly  unsupported  by  facts. 
Among  the  assumptions  embraced  in  every  conclusion 
there  must  be  (1)  that  at  some  period  of  the  world's 
history,  we  know  not  when,  and  by  some  process,  we 
know  not  what,  dead  matter  became  living  matter ; 
(2)  that  at  times  and  by  processes  equally  unknown, 


84         MEDICO-LEGAL    RELATIOjSTS    OF   INSANITY. 

there  was  "  transmutation  of  species" ;  and  (3)  that 
many  missing  links  in  the  species-chain  now  extinct, 
once  existed ;  but  without  a  shadow  of  proof  of  such 
existence,  geology  being  profoundly  silent  on  the 
subject.  These  must  all  be  shown,  because  all  are 
included  in  man's  origin  according  to  evolution. 

§  30.  Assumptions  of  the  same  character,  and  inge- 
nious speculations  conspicuous  for  their  lack  of  verifi- 
cation, are  also  observable  in  the  processes  accounting 
for  the  physical  origin  of  thought,  judgment,  will,  etc. 
Kef  erring  to  it,  Mr.  Lewes  says,^  "  Let  me  only  warn 
the  reader  who  has  to  rely  on  second-hand  instruction 
that  the  assignment  of  even  Thinking  to  the  cerebral 
hemispheres  is  purely  hy|)othetical.  Whatever  may 
be  the  evidence  on  which  it  rests,  it  must  still  be  ac- 
knowledged to  be  an  hypothesis  awaiting  verification. 
This  may  seem  incredible  to  some  readers  accustomed 
to  expositions  which  do  not  suggest  a  doubt — exposi- 
tions where  the  course  of  an  impression  is  described 
from  the  sensitive  surface,  along  the  sensory  nerve  to 
its  ganglion,  from  thence  to  a  particular  s2:>ot  in  the 
Optic  Thalamus  (where  the  impression  is  said  to  be- 
come a  sensation)  ;    from  that  sj^ot  to  cells  in  the 

^  Problems  of  Life  and  Mind  (Third  Series),  pp.  65-66. 


THE   SOMATIC    THEORY.  85 

upper  layer  of  tlie  cerebral  convolutions  (Avliere  tlie 
sensation  becomes  an  idea) ;  from  thence  downwards 
to  a  lower  layer  of  cells  (where  the  idea  is  changed 
into  a  volitional  imj)ulse)  ;  and  from  thence  to  the 
motor- ganglia  in  the  spinal  cord,  where  it  is  reflected 
on  the  motor-nerves  and  muscles. 

"  Nothing  is  w^anting  to  the  2^'^ecision  of  this  de- 
scription. Everything  is  wanting  to  its  proof.  The 
reader  might  suppose  that  the  course  had  been  fol- 
lowed Btej)  by  step,  at  least  as  the  trajectory  of  a  can- 
non-ball or  the  path  of  a  planet  is  followed ;  and  that 
where  the  actual  observation  is  at  fault  calculation  is 
ready  to  fill  up  the  gap.  Yet  what  is  the  fact  ?  It  is 
that  not  a  single  step  of  this  involved  process  has 
ever  been  observed ;  the  description  is  imaginary 
from  beginning  to  end.  I  do  not  say  that  imagination 
has  had  no  inductions  to  work  uj^on,  but  I  say  that 
all  the  evidence  we  at  present  have  goes  no  nearer 
than  showing  that  the  integrity  of  the  nervous  sys- 
tem is  necessary  for  the  manifestation  of  its  mental 
phenomena ;  and  that  although  specialization  of  func- 
tion demands  specialization  of  organ,  we  have  not  yet 
discovered  the  special  parts  played  by  particular  por- 
tions of  the  central  nervous  mass." 

Again,  we  shall  be  indebted  to  Professor  Tyndall, 


86  MEDICO-LEGAL   RELATIONS   OF   INSANITY. 

who  says/  "The  j)assage  from  the  physics  of  the 
brain  to  the  corresponding  facts  of  consciousness  is 
unthinkable.  Granted  that  a  definite  thought  and  a 
definite  molecular  action  in  the  brain  occur  simulta- 
neously ;  we  do  not  possess  the  intellectual  organ,  nor 
apparently  any  rudiment  of  the  organ,  which  would 
enable  us  to  pass,  by  a  process  of  reasoning,  from  the 
one  to  the  other.  They  appear  together,  but  we  do  not 
know  why.  Were  our  minds  and  senses  so  expanded, 
strengthened,  and  illuminated  as  to  enable  us  to  see 
and  feel  the  very  molecules  of  the  brain;  were  we 
capable  of  following  all  their  motions,  all  their  group- 
ings, all  their  electric  discharges,  if  such  there  be; 
and  were  we  intimately  acquainted  with  the  corre- 
sponding states  of  thought  and  feeling,  we  should  be 
as  far  as  ever  from  the  solution  of  the  problem,  '  How 
are  these  physical  processes  connected  with  the  facts 
of  consciousness  ?' " 

§  31.  If  scientific  theories  are  to  receive  the  un- 
qualified approval  and  support  of  thinking  men,  it  is 
all-important  that  those  theories  should  be  established 
by  verified  facts.  In  the  "  somatic"  and  "  evolution" 
theories  it  is  admitted  that  there  are  many  verified 
facts  used,  and  much  reasoning  that  appears  to  be 

^  Fragments  of  Science,  pp.  119-120. 


THE    SOMATIC    THEORY.  87 

irrefutable  were  the  'premises  granted,  but  there  is  also 
so  mucb  taken  for  granted,  so  many  facts,  so  called, 
that  are  not  verified,  and  which  are  essentials  in  the 
establishment  of  the  theories,  that  until  those  postulates 
give  place  to  verifications,  would  it  not  be  better,  less 
likely  to  mislead,  to  designate  them,  as  they  are,  hypo- 
theses, instead  of  theories  ?  Besides,  even  the  demon- 
strations of  some  of  our  exactest  sciences  will  sometimes 
mislead,  unless  corrected  by  observation,  experience, 
and  common  sense.  Take  chemistry,  for  example. 
By  it  we  demonstrate  that  diamond,  plumbago,  and 
charcoal  all  =  C  (carbon)  ;  that  oils  of  bergamot, 
pepper,  and  valerian  (and  many  others)  all  =  QoHie. 
Now  exactly  the  same  mathemat'cal  reasoning  which 
we  use  to  demonstrate  that  the  three  sides  of  an  equi- 
lateral triangle  are  equal,  alike,  identical,  demonstrates 
that  diamond,  plumbago,  and  charcoal,  being  each 
equal  to  "  C,"  are  "  each  equal  to  one  another,"  and  as 
things  that  are  equal  to  the  same  thing  are  equal  to 
one  another,  therefore  diamond,  plumbago,  and  char- 
coal are  alike,  identical ;  and  by  the  same  process  of 
demonstration,  so  are  the  oils  of  bergamot,  pepper,  and 
valerian  alike,  each  equal  to  the  other ;  and  it  remains 
for  observation,  experience,  and  common  sense  to  cor- 
rect the  demonstrations  of  that  exact  science,  chemis- 


88         MEDICO-LEGAL    RELATIONS   OF   INSANITY. 

try;  and  the  illustrations  given  by  no  means  exhaust  the 
list,  as  what  is  true  of  them  is  true  of  all  isomers  and 
allotropes.  We  attempt  to  account  for  the  actual  differ- 
ence between  isomeric  bodies  by  supposing  a  different 
molecular  arrangement,  but  that  is  simply  an  inference, 
a  supposition,  without  any  support  from  verified  facts. 

We  are  self-conscious  that  we  think,  that  thought 
exists,  but  we  know  nothing  as  a  matter  of  observa- 
tion or  of  fact  of  even  the  existence  of  the  thought 
molecule,  if  such  a  thing  exists,  on  which  so  largely 
depends  the  theory,  or  rather  hyj^othesis,  of  mind 
being  a  function  of  the  brain  or  nerve-centres  accord- 
ing to  the  "  somatic  theory." 

Further  objections  might  be  urged  from  the  consid- 
eration of  volition,  reason,  and  judgment,  but  we  think 
our  purpose  already  accomplished.  We  have  no  in- 
tention at  present  to  discuss  the  "somatic"  or  any 
other  theory  otherwise  than  as  we  apprehend  it  may 
affect  the  medico-legal  relations  of  insanity.  We  are 
not  required  to  disprove  the  "somatic  theory,"  but 
only  to  point  out  such  important  defects  that  it  cannot 
be  considered  an  established  theory,  as  then,  nothing 
can  be  proved  by  it  any  more  than  by  an  unverified 
rule.  The  other  objection,  "  moral  insanity,"  will  be 
considered  in  the  chapter  on  "  Experts"  (§  69) . 


CHAPTER    IV. 

THE   INTERMEDIATE   THEORY. 

What  Messrs.  Wharton  and  Stille  claim  for  it — A  Theory  must  be  es- 
tablished to  have  any  Authority — Claims  of  the  "Intermediate"  to 
be  regarded  as  a  Theory  considered — Want  of  Clearness  and  Pre- 
cision of  Language  deprecated — Definition  of  "  Theory"  and  "  Hy- 
pothesis"— Designation  "Intermediate"  a  Misnomer — Physical 
Origin  and  Growth  of  Mental  Disease  considered — System  of 
Therapeutics — Obviation  of  Difficulties  by  "Intermediate"  consid- 
ered— Position  assumed  by  Messrs.  Wharton  and  Stille  considered 
— Legal  Tests  cannot  define  or  determine  Physical  Diseases — 
Conclusion. 

§  32.  The  "  intermediate  theory"  of  Messrs.  Whar- 
ton and  Stille  will  now  be  considered ;  in  introducing 
which  they  say/  "  To  those  who  have  examined  that 
portion  of  the  preceding  pages  which  treats  of  the 
legal  relation  of  mental  unsoundness,  it  will  be  ob- 
vious that  no  hypothesis  can  be  constructed  which 
will  meet  with  exactness  every  possible  future  case. 

"No  general  definition  has  therefore  been  at- 
tempted, and  it  is  siifficient  at  present  to  notice  the 
three   prominent    hypotheses    by   which    the   cause, 

1  Med.  Juris.,  3d  Ed.,  vol.  i.  I  318. 


90         MEDICO-LEGAL   KELATIONS   OF   INSANITY. 

rather  than  the  nature,  of  mental  unsoundness  has 
been  explained.  This  examination  is  here  made  the 
more  thorough,  from  the  fact  that  it  is  upon  the  result 
of  this  inquiry  that  the  philosophy  of  the  common 
law  doctrine  of  insanity  must  depend." 

It  will  be  readily  admitted  that  if  the  "  philosophy 
of  the  common  law  doctrine  of  insanity  must  depend" 
upon  some  hypothesis,  or,  what  would  be  much  better, 
upon  some  established  theory,  it  is  of  the  utmost  im- 
portance that  that  hypothesis  or  theory  should  be  ex- 
amined with  the  most  exacting  scrutiny,  so  as  to  verify 
its  correctness  and  reliability  beyond  peradventure. 

The  2)sychical  and  somatic  theories  are  discussed, 
and  their  defects  and  inconsistencies  very  forcibly 
pointed  out,  by  Messrs.  Wharton  and  Stille,  and  they 
conclude  that  both  are  impracticable ;  then  they  in- 
troduce the  intermediate  theory,  to  which  they  give 
the  weight  of  their  authority,  and,  while  they  very 
effectively  criticise  the  former  theories,  they  apj)ear  to 
think  the  enunciation  of  their  favored  theory  amply 
sufficient,  as,  with  the  exception  of  a  few  inconclusive 
arguments,  they  have  offered  nothing  in  its  support. 
Let  it  be  borne  in  mind  that  a  theory  must  be  fully 
established  before  it  can  be  used  as  authority,  or  as 
evidence  in  the  discussion  of  any  proposition.     No 


THE   IXTEEMEDIATE   THEORY.  91 

proposition  can  be  rationally  explained  by  a  simple 
reference  to  an  assumed  criterion  wliich  itself  requires 
explanation  to  render  it  intelligible,  or  proved  by  a 
similar  reference  where  the  criterion  is  unverified. 
Thus,  the  atomic  theory  may  now  be  properly  invoked 
in  explanation  or  proof  of  any  chemical  problem,  but 
it  could  not  have  been  so  used  until  established  as  a 
theory  by  Dalton  at  the  beginning  of  the  present 
centurv. 

Considering  the  intermediate  theory  as  the  basis 
on  vrhicli  the  "  philosophy  of  the  common  law  doc- 
trine of  insanity  must  depend,"  as  claimed  by  Messrs. 
T\Tiarton  and  Stille,  surely  the  vastness  of  the  respon- 
sibility resting  upon  it  should  have  induced  the  emi- 
nent authors  to  enunciate  theu'  criterion  in  language 
so  clear  and  exact  that  a  misaj^prehension  of  its  mean- 
ing would  be  almost,  if  not  quite,  impossible,  and  to 
have  established  its  trustworthiness  by  the  strongest 
proofs  and  the  most  convincing  arguments  at  their 
command.  These  are  reasonable,  nay,  imperative,  re- 
quirements, yet,  incredible  as  it  may  seem,  these 
writers  of  acknowledo-ed  abilitv  have  neither  furnished 
the  one,  nor  offered  the  other.  The  omission  is  so  re- 
markable that,  fearing  a  charge  of  misrepresenting 
them,  Sections  329-337,  inclusive,  which  is  all  they 


92         MEDICO-LEGAL   RELATIONS   OF  INSANITY. 

offer  in  sujDport  of  tlie  intermediate  theory,  will  be 
found  below.^ 


^  Intermediate  Theory.     Its  Basis. 

I  329.  This  view  attributes  to  the  body  and  soul  alike  originative 
influence,  in  the  grovrth  of  mental  diseases.  The  theory  is  the  one  best 
sustained  by  modern  induction,  and  is  that  which  is  most  consistent, 
as  will  presently  be  seen,  with  the  Christian  standard. 

Independently  of  the  pathological  difficulties  in  the  way  of  the  so- 
matic theory,  psychological  research  testifies  most  strongly  against  it. 
The  mental  and  moral  functions  are  the  immediate  products  of  an  in- 
dependent sphere  of  organism,  and  not  to  be  explained  by  anything 
lying  outside  of  that  sphere.  The  brain  and  nerves  have  only  the 
physical  part  of  perception  and  motion,  and  to  some  extent  the  regula- 
tion of  the  functions  to  perform  ;  but  the  soul  cannot  but  be  considered 
as  distinct  from  this  activity  of  the  nerves.  The  somatic  theory,  which 
confounds  the  two,  will  never  be  able  to  make  a  satisfactory  distinction 
between  palsy  and  imbecility,  between  convulsions  and  ravings,  be- 
tween sensuous  hallucinations  and  insanity.  This  theory,  therefore, 
fails  in  affording  support  to  any  practical  system  of  therapeutics. 

^  330.  The  psychological  theory,  at  its  first  inception,  split  upon  the 
opposite  rock  in  denying  the  influence  of  the  physical  processes  upon 
mental  diseases  in  the  face  of  experience.  In  opposition  to  the  soma- 
tists,  it  was  thought  necessary  to  exclude  all  natural  causes  from  the 
explanation  of  the  origin  of  mental  aflfections,  and  to  ascribe  them  to 
an  act  of  voluntary  self-inthralraent,  which  in  all  cases  was  to  be 
attributed  to  some  prior  moral  excess  or  delinquency  incurred  with  a 
knowledge  of  the  consequences.  But  a  derangement  of  mind  is  not 
identical  with  sin.  For,  though  every  vice,  every  sin,  is  an  abnor- 
mity of  the  soul,  yet  every  abnormity  of  the  soul  is  not  sin.  A 
lunatic  may  be,  in  a  human  sense,  innocent  of  positive  guilt ;  and,  on 
the  otlier  hand,  the  worst  of  criminals  may  retain  his  sanity.  It  is 
impossible  to  adhere  to  this  doctrine  in  practice  without  reducing  the 
entire  treatment  of  the  disease  to  a  system  of  rewards  and  punish- 


THE   INTERMEDIATE   THEORY.  93 

§  33.  Probably  some  parts  of  tbe  following  brief 
analysis  may  at  first  sight  appear  hypercritical;  but 


ments ;  and  the  vagueness  of  the  idea  of  freedom  and  constraint,  the 
impossibility  of  distinguishing  between  the  moral  thraldom  of  the 
criminal  and  that  of  the  sick  man,  will  throw  into  confusion  the  entire 
system  of  forensic  psychology.  It  is  equally  wrong  to  derive  all  dis- 
eases of  the  mind  from  the  passions,  although  the  latter  may  be  im- 
portant causes,  and,  in  the  more  advanced  stages,  symptoms  of  insanity. 
At  the  same  time,  as  will  hereafter  be  more  fully  shown,  there  is  in  the 
mass  of  cases  of  insane  convicts  such  an  amount  of  responsibility  as  to 
require  the  infliction  of  a  degree  of  punishment  which,  though  differ- 
ent from  that  imposed  on  the  sane,  will  yet  be  accompanied  with  a  cor- 
rective as  well  as  a  preventive  discipline. 

^  331.  The  intermediate  theory  is  that  to  which  the  soundest  psychol- 
ogists now  tend.  "In  the  first  place,"  says  Sir  William  Hamilton, 
"  there  is  no  good  ground  to  suppose  that  the  mind  is  situated  solely 
in  the  brain,  or  exclusively  in  any  one  part  of  the  body.  On  the  con- 
trary, the  supposition  that  it  is  really  present  wherever  we  are  conscious 
that  it  acts — in  a  word,  the  Peripatetic  aphorism,  the  soul  is  all  in  the 
whole  and  all  in  every  part — is  more  philosophical,  and  consequently 
more  probable  than  any  other  opinion.  It  has  not  been  always  noticed, 
even  by  those  who  deem  themselves  the  chosen  champions  of  the  im- 
mortality of  the  soul,  that  we  materialize  mind  when  we  attribute  to  it 
the  relations  of  matter.  Thus,  we  cannot  attribute  a  local  seat  to  the 
soul  without  clothing  it  with  the  properties  of  extension  and  place,  and 
those  who  suppose  this  seat  to  be  but  a  point  only  aggravate  the  diffi- 
culty. Admitting  the  spirituality  of  mind,  all  that  we  know  of  the 
relation  of  soul  and  body  is  that  the  former  is  connected  with  the  latter 
in  a  way  of  which  we  are  wholly  ignorant ;  and  that  it  holds  relations, 
different  both  in  degree  and  kind,  with  diflferent  parts  of  the  organism. 
We  have  no  right,  however,  to  say  that  it  is  limited  to  any  one  part  of 
the  organism  ;  for  even  if  we  admit  that  the  nervous  system  is  the  one 
to  which  it  is  proximately  united,  still  the  nervous  system  is  itself 


94  MEDICO-LEGAL    RELATIONS   OF   INSANITY. 

when  the  momentous  importance  of  the  subject,  from 
the  incalculable  interests  at  stake,  is  considered,  the 


universally  ramified  throughout  the  body ;  and  we  have  no  more  right 
to  deny  that  the  mind  feels  at  the  finger-points,  as  consciousness  assures 
us,  than  to  assert  that  it  thinks  exclusively  in  the  brain.  The  sum  of 
our  knowledge  of  the  connection  of  the  mind  and  body  is,  therefore, 
this:  that  the  mental  modifications  are  dependent  on  certain  corporal 
conditions  ;  but  of  the  nature  of  these  conditions  we  know  nothing. 
For  example,  we  know  by  experience  that  the  mind  perceives  only 
through  certain  organs  of  sense,  and  that  through  these  difierent  organs 
it  perceives  in  a  diSerent  manner.  But  whether  the  senses  be  instru- 
ments, whether  they  be  media,  or  whether  they  be  only  partial  outlets 
to  the  mind  incarcerated  in  the  body,  on  all  this  we  can  only  theorize 
and  conjecture. 

^  332.  The  intermediate  theory  has  at  least  not  been  rejected  by 
standard  Christian  theologians.  "  The  resurrection,"  says  Bishop 
Pearson,  "  is  not  only  in  itself  possible,  so  that  no  man  with  any  reason 
can  absolutely  deny  it,  but  it  is  also  upon  many  considerations  highly 
probable,  so  that  all  men  may  very  rationally  expect  it.  If  we  con- 
sider the  principles  of  humanity,  the  parts  of  which  we  all  consist,  we 
cannot  conceive  this  present  life  to  be  proportionable  to  our  compo- 
sition. The  souls  of  men,  as  they  are  immaterial,  so  they  are  immor- 
tal ;  and  being  once  created  by  the  Father  of  spirits,  they  receive  a 
subsistence  for  eternity ;  the  body  is  framed  by  the  same  God  to  be  a 
companion  for  his  spirit,  and  a  man  born  into  the  world  consisteth  of 
these  two.  Now,  the  life  of  the  most  aged  person  is  but  short,  and 
many  far  ignobler  creatures  have  a  longer  duration.  Some  of  the  fowls 
of  the  air,  several  of  the  fishes  of  the  sea,  many  of  the  beasts  of  the 
field,  divers  of  the  plants  of  the  earth,  are  of  a  more  durable  constitu- 
tion, and  outlive  tlie  sons  of  men.  And  can  we  think  that  such  material 
and  mortal,  that  such  inunderstanding  souls  should  by  God  and 
nature  be  furnished  with  bodies  of  so  long  permansion,  and  that  our 
spirits  sliniid  be  joined  unto  flesh  so  subject  to  corruption,  so  suddenly 


THE   INTERMEDIATE   THEORY.  95 

imperative   necessity  for   tlie   utmost  perspicuity  in 
language,  and  exactness  and  precision  in  reasoning, 


dissolvable,  were  it  not  that  they  lived  but  ouce,  and  so  enjoyed  that 
life  for  a  longer  season,  and  then  went  soul  and  body  to  the  same 
destruction,  never  to  be  restored  to  the  same  subsistence?  But  when 
the  soul  of  man,  which  is  immortal,  is  forced  from  its  body  in  a  shorter 
time,  nor  can  by  any  means  continue  with  it  half  the  years  which  many 
other  creatures  live,  it  is  because  this  is  not  the  only  life  belonging  to 
the  sons  of  men,  and  so  the  soul  may  at  a  shorter  warning  leave  the 
body  which  it  shall  resume  again." 

I  333.  To  this  may  be  added  the  authority  of  Isaac  Taylor,  who,  in 
his  "Physical  Theory  of  Another  Life,"  after  pointing  out  how  com- 
pletely the  question  whether  the  human  soul  is  ever  actually  or  entirely 
separated  from  matter  is  passed  over  by  St.  Paul  as  an  inquiry  alto- 
gether irrelevant  to  religion,  continues:  "Let  it  be  then  distinctly  kept 
in  view  that  although  the  essential  independence  of  mind  and  matter, 
or  the  abstract  possibility  of  the  former  existing  apart  from  the  cor- 
poreal life,  may  well  be  considered  as  tacitly  implied  in  the  Christian's 
scheme,  yet  that  an  actual  incorporeal  state  of  the  human  soul,  at  any 
period  of  its  course,  is  not  involved  in  the  principles  of  our  faith  any 
more  than  is  explicitly  asserted." 

§  334.  "  We  are  unable,"  says  Pascal,  "  to  conceive  what  is  mind ; 
we  are  unable  to  perceive  what  is  matter ;  still  less  are  we  able  to  con- 
ceive how  these  are  united  ;  yet  this  is  our  proper  nature." 

?  335.  "  Such,"  says  President  Edwards,  the  first  metaphysician  of 
his  country,  and  perhaps  the  first  of  his  age,  "  seems  to  be  our  nature, 
and  such  the  laws  of  the  union  of  soul  and  body,  that  there  never  is 
in  any  case  whatsoever,  any  lively  and  vigorous  exercise  of  the  will  or 
inclination  of  the  soul  without  some  effect  upon  the  body  in  some 
alteration  of  the  motion  of  its  fluids,  and  especially  of  the  animal 
spirits.  And,  on  the  other  hand,  from  the  same  laws  of  the  union  of 
the  soul  and  body,  the  constitution  of  the  body  and  the  motion  of  its 
fluids  may  promote  the  exercise  of  the  affections,  but  yet  it  is  not 


96         MEDICO-LEGAL   EELATIONS   OF   INSANITY. 

will  be  obvious ;  hence  nothing  can  be  unimportant 
which  could  by  any  possibility  lead  to  incorrect  con- 


the  body,  but  the  mind  only  that  is  the  proper  seat  of  the  affections. 
The  body  of  man  is  no  more  capable  of  being  really  the  subject  of 
love  or  hatred,  joy  or  sorrow,  fear  or  hope,  than  the  body  of  a  tree,  or 
than  the  same  body  of  man  is  capable  of  thinking  or  understanding. 
As  it  is  the  soul  only  that  has  ideas,  so  it  is  the  soul  only  that  is  pleased 
or  displeased  with  its  ideas.  As  it  is  the  soul  only  that  thinks,  so 
it  is  the  soul  only  that  loves  or  hates,  rejoices  or  is  grieved  at  what 
it  thinks  of.  Nor  are  these  motions  of  the  animal  spirits  and  fluids 
of  the  body  anything  properly  belonging  to  the  nature  of  the  affec- 
tions, though  they  always  accompany  them  in  the  present  state,  but 
are  only  effects  or  concomitants  of  the  affections  that  are  entirely 
distinct  from  the  affections  themselves,  and  no  way  essential  to  them  ; 
so  that  an  unbodied  spirit  may  be  as  capable  of  love  and  hatred,  joy 
or  sorrow,  hope  or  fear,  or  other  affections,  as  one  is  that  is  united  to  a 
body." 

Effects  of  Intermediate  Theory  on  ResponsiMlity. 

I  336.  The  intermediate  theory,  as  above  stated,  relieves  the  doctrine 
of  criminal  responsibility  of  some  of  its  chief  difficulties.  If  the  so- 
matic theory  be  correct,  then  a  criminal  propensity  is  a  physical  mal- 
formation, for  which  the  defendant  is  no  more  responsible  than  he  is  for 
a  malformation  of  the  limbs.  A  squint  in  morals,  to  carry  out  a  meta- 
phor of  Chief-Justice  Gibson,  would  in  this  view  be  no  more  a  fault 
than  a  squint  of  the  eyes.  Such  a  criminal  may  be  prevented  from 
future  misconduct ;  but,  logically,  neither  punitive  nor  reformatory  dis- 
cipline can  be  applied  to  him;  the  first  because  it  is  unjust,  the  sec- 
ond because  it  is  hopeless.  Here  indeed  the  representatives  of  the 
somatic  theory  practically  divide.  By  some,  permanent  incarceration — 
and  this  solely  on  preventive  grounds — is  the  only  penalty  to  which 
criminals   can   be   properly  subject.      By  others,  among  whom   Mr. 


THE   INTEEMEDIATE    THEORY.  97 

elusions.     An  unwarranted  assumption,  a  deduetion 
not  strictly  legitimate,  an  ambiguous  expression,  of  no 


Bain  is  a  modified  representative,  punishment  is  vindicated  as  having 
a  necessary  moral  eflFect  in  reforming  the  criminal. 

On  the  other  hand,  if  the  psychological  theory  be  correct,  insanity, 
by  becoming  an  organic  intellectual  lesion,  is  as  much  withdrawn,  it 
may  be  argued,  from  the  casual  power  of  the  will  as  it  is  on  the  somatic 
basis.  It  cannot  be  reached  by  penal  discipline,  for  by  the  very  hy- 
pothesis on  which  it  is  framed  it  rises  above  the  action  of  the  nervous 
and  corporeal  system.  It  cannot  be  reformed  by  bodily  correction  ;  and 
to  attempt,  therefore,  by  such  correction  to  reach  it,  would  be  both 
unjust  and  nugatory. 

^  337.  The  intermediate  theory,  however,  teaches  us  that  insanity 
(with  the  exception  of  idiocy  and  certain  hereditary  and  organic  types) 
is  (1)  in  a  large  measure  the  result  of  nervous  and  physical  causes, 
often  voluntarily  induced,  partly  by  the  negligence  and  partly  by  the 
misconduct  of  the  patient  himself;  and  (2)  that  in  such  cases,  by  being 
made  the  subject  of  penal  discipline,  it  may  often  be  prevented  or  re- 
strained. The  remaining  difficulty  is  to  determine  what  are  the  cases 
to  which  such  penal  discipline  is  applicable.  And  here  the  analogies 
of  the  English  common  law  give  us  a  safe  test.  Where  mania  apotu 
results  from  drink,  the  party  becomes  irresponsible.  Where,  however, 
he  commits  a  crime  in  a  voluntary  drunken  fit,  this  drunkenness  avails 
him  nothing,  unless  to  relieve  him  from  the  implication  of  premeditated 
malice  or  complex  fraud.  Thus  when  the  fatal  assault  is  conceived  by 
a  party  when  intoxicated,  he  is  not  presumed  to  act  with  that  premedi- 
tation or  that  specific  intention  to  take  life  which  is  necessary  to  sub- 
ject him  to  capital  punishment.  So  it  is  in  insanity.  Mania,  when  a 
permanent  disorder  of  the  intellect,  by  incapacitating  the  party  from 
reasoning  on  the  particular  issue,  relieves  him  from  criminal  responsi- 
bility. But  a  mere  "  monomania,"  unaccompanied  by  intellectual  le- 
sion, cannot,  for  penal  purposes,  be  considered  else  than  voluntary 
passion.     It  may  be  invoked  to  lower  the  grade  from  murder  in  the 

7 


98  MEDICO-LEGAL    RELATIONS    OF    INSANITY. 

seeming  importance  in  the  connections  in  wliicli  it 
may  sometimes  occur,  may  in  a  different  connection 
so  change  a  proposition  as  to  be  the  direct  cause  of 
error;  therefore  every  a^Dpearance  of  inexactness 
should  be  carefully  examined. 

In  the  section  just  quoted  "  the  three  prominent 
hypotheses"  are  referred  to,  and  immediately  follows 
"  the  psychical  theory,"  after  defining  which  follows 
"the  somatic  theory,"  which  they  discuss  at  some 
length,  then  comes  the  "intermediate  theory."  What, 
then,  are  these;  hypotheses  or  theories?  or,  are  the 
terms  synonymous?  "  A  theory  is  founded  on  infer- 
ences drawn  from  principles  which  have  been  estab- 
lished by  evidenced  "An  hypothesis  is  a  mere  suppo- 
sition, or  a  proposition  or  priiiciple  assumed  or  taken 
for  y  ranted,  to  account  for  certain  phenomena."^ 

While  not  irrevocably  wedded  to  Dr.  Taylor's 
definitions,  we  think  them  very  good,  and  we  re- 
spectfully submit  that  "  hypothesis"  and  "  theory" 
are  not  synonymous  terms,  and  that  as  a  basis  on 
which  to  rest  the  "philosophy  of  the  common  law 


first  to  murder  in  the  second  degree  by  depriving  the  intent  of  that 
coolness  and  specialty  necessary  to  make  up  the  former  offence,  but  it 
can  never  be  the  basis  of  an  acquittal  on  the  ground  of  irresponsibility. 
^  Tavlov,  Elements  of  Thoiiclit. 


THE    INTEEMEDIATE   THEORY.  99 

doctrine  of  insanity"  something  more  stable  than  an 
hypothesis — "a  mere  supposition,  or  proposition  or 
principle  assumed,  or  taken  for  granted" — is  impera- 
tively required.  We  want  something  at  least  as  fixed 
and  permanent  as  an  established  theory,  "  founded 
on  inferences  drawn  from  principles  which  have  been 
established  by  evidence."  Whether  the  definitions 
quoted  are  received  or  not,  we  purpose  showing  that 
the  "intermediate  theory"  of  Messrs.  Wharton  and 
Stille  is  an  hypothesis,  "  a  principle  assumed  or  taken 
for  granted  to  account  for  certain  phenomena."  Is 
not  the  7iame  itself  an  ambiguity,  a  misnomer  ? 

§  34.  If  the  term  "  intermediate"  is  used  simply  as 
a  name,  a  designation,  without  attaching  any  meaning 
to  the  phrase,  then  it  is  a  new  theory  and  must  be  es- 
tablished ah  initio,  which  has  not  been  done ;  there- 
fore it  must  be  assumed  that  the  name  of  the  theory 
carried  its  ordinary  meaning,  and  that  the  theory  was 
intended  to  hold  a  position  intermediate  between  the 
"  somatic"  and  the  psychological. 

But  does  it  hold,  is  it  possible  for  it  to  hold,  such 
a  position?  Granted  that  it  occupies  a  less  extreme 
position  than  either  of  the  theories  named,  that  does 
not  necessarily,  and  does  not  in  fact,  in  this  connection 
constitute  it  iyitermediate,  as  that  term  postulates  con^ 


100       MEDICO-LEGAL    EELATIONS    OF   INSANITY. 

nected  extremes : — "  noting  the  terms  of  a  progression 
between  the  first  and  the  last."  ^  "  Those  general 
natures  which  stand  between  the  nearest  and  most 
remote." 

Intermediate  cannot,  therefore,  be  properly  used 
between  unconnected  subjects.  We  cannot  speak  of 
anything  being  intermediate  between  love  and  colic, 
or  between  veneration  and  jaundice.  Nor  can  we 
with  any  proj)riety  speak  of  an  intermediate  between 
o^oposites.  An  intermediate  between  good  and  evil  is 
unthinkable.  We  cannot  take  a  little  from  each,  say 
prayer  and  almsgiving  from  piety,  and  theft  and  mur- 
der from  wickedness,  and  call  the  compound  interme- 
diate between  sin  and  holiness.  Observe,  the  term  is 
not  used  as  referring  to  the  connection  between  body 
and  mind,  but  between  the  psychical  and  "  somatic'.' 
theories,  which,  from  their  bases,  are  simply  affirma- 
tion and  negation.  The  one  theory  affirms  that  mind 
is  a  distinct,  self-existent  entity,  the  other  denies  it. 
The  whole  sujDerstructure  of  psychology  is  based  upon 
the  consideration  of  the  mind  as  a  distinct  entity,  a 
unit,  indivisible,  complete  in  itself,  and  for  its  exist- 
ence independent  of  our  j^hysical  organization;  per 

^  Worcester. 


THE   INTERMEDIATE   THEORY.  lOl 

contra,  tlie  "somatic  theory"  holds  that  the  mind  is 
not  a  distinct  entity,  but  is  a  function  of  the  brain  or 
nerve-centres,  hence  incapable  of  existing  apart  from 
the  physical  structure  of  which  it  is  a  function  ;  there- 
fore the  two  theories  being  opposites,  there  can  be  no 
inter  medius  relation  between  them,  consequently  the 
name  is  a  misnomer. 

§  35.  Passing  over  the  peculiar  construction  and 
ambiguity  of  the  first  sentence  of  §  329,  "Origina- 
tive" (an  act)  "influence  in  the  growth"  (a  gradual 
development  in  which  time  is  an  indispensable  factor) 
"of  mental  diseases,"  the  section  furnishes  a  large 
amount  of  assertion,  but  not  one  particle  of  proof. 
Surely  so  strange  a  position  as  that  of  the  body  origi- 
nating disease  of  the  mind  calls  for  some  explanation 
of  the  modus  operandi,  or  for  some  verified  proof  of 
the  fact,  if  fact  it  be;  but,  strange  to  say,  there  is  none 
there,  nor  is  there  any  anywhere  else  in  their  worh. 
Bear  in  mind  that  they  explicitly  repudiate  the  "  so- 
matic theory"  in  the  same  section.  "The  mental  and 
moral  functions  are  the  immediate  products  of  an 
independent  sphere  of  organism,  and  not  to  be  ex- 
plained by  anything  lying  outside  of  that  sphere ;  .  .  . 
the  soul  cannot  but  be  considered  as  distinct  from  this 
activity  of  the  nerves."    According  to  the  "  psychical 


102      MEDICO-LEGAL   KELATIONS   OF   INSANITY. 

tlieory"  the  mind  may  be  diseased,  and  according  to 
the  "  somatic"  and  "  physical  media"  theories,  certain 
physical  organs  may  be  diseased,  disordering  the 
mind,  but,  according  to  the  "intermediate  theory," 
how  unfortunate  the  poor  mind,  for  instead  of  one 
general  source  of  disease  it  has  two,  as  both  body  and 
mind  may  originate  mental  diseases. 

Is  it  not  a  necessary  sequence  that  if  the  body  can 
originate  and  influence  the  growth  of  mental  diseases, 
the  mind  must  be  dependent  upon  the  body  for  its 
health,  and  if  for  its  health,  why  not  for  its  existence? 
Does  not  this  approach  the  somatic  view  very  closely, 
notwithstanding  their  disclaimer  to  the  contrary  ? 

Just  what  the  intermediate  theory  embraces  we  do 
not  know,  as  the  authors  have  not  thought  it  neces- 
sary to  furnish  any  definition  by  which  its  scope  may 
be  limited,  further  than  by  it  to  claim  for  "  body  and 
soul  alike  originative  influence  in  the  growth  of 
mental  diseases,"  and  in  support  of  that  claim  not  a 
scintilla  of  verified  proof  is  furnished  by  them. 

If  the  "intermediate"  be  regarded  as  a  modification 
of  the  psychical  and  somatic  theories,  it  might  have 
been  admissible  to  assume  that  in  as  far  as  either  of 
those  theories  was  adopted  as  a  j)art  of  the  "  inter- 
mediate," so  far  its  claims  would  be  admitted  without 


THE    INTEEMEDIATE   THEORY.  103 

verification,  but  tliose  parts  which  were  new,  just 
introduced,  ought  certainly  to  have  been  explicitly 
defined,  and  fully  authenticated  by  verified  proofs. 

The  ipse  dixit  of  any  author,  however  eminent,  if 
unsupported  by  conclusive  reasoning  or  strong  proof, 
is  not  sufiicient  to  successfully  launch  a  new  theory, 
or  even  a  modification  of  an  old  one,  more  especially 
on  a  subject  so  important,  and  one  on  which  men  of 
the  most  highly -gifted  minds  have  written  volumes 
almost  without  number. 

The  assertion  that  "  psychological  research  testifies 
most  strongly  against  it"  (the  somatic  theory)  is  doubt- 
less true  in  the  estimation  of  some  psychologists,  but 
it  is  quite  as  true  that  the  terms  are  reversed  in  the 
estimation  of  somatists.  Two  very  eminent  authors 
and  investigators  say,  "On  all  hands  it  is  admitted 
that  the  manifestations  of  mind  take  place  through 
the  nervous  system;  and  that  its  derangements  are  the 
result  of  nervous  disease,  amenable  to  the  same  method 
of  investigation  as  other  nervous  diseases.  Insanity 
has  accordingly  become  a  strictly  medical  study,  and 
its  treatment  a  branch  of  medical  practice."^ 

"On  this  point   the  controversies  of  philosophers 

^  Maudsley,  Body  and  Mind,  pp.  12,  13. 


104       MEDICO-LEGAL   EELATIONS   OF   INSANITY. 

and  metaphysicians,  whicli  have  been  taking  place 
from  time  immemorial,  have  succeeded  in  arriving  at 
but  one  thing — the  expression  in  sonorous  language 
of  their  ignorance,  more  or  less  complete,  of  the 
fundamental  characters  of  j)sychical  life. 

"  We  must,  indeed,  penetrate  into  the  inmost  essence 
of  the  activity  of  cerebral  life,  into  the  complex  phe- 
nomena in  which  it  reveals  itself,  to  arrive  at  a  com- 
prehension of  the  evolution  of  any  voluntary  act 
whatsoever,  and  the  natural  manner  in  which  it 
expresses  itself  through  the  organism."^ 

In  the  next  two  sentences,  Wharton  and  Stille  in- 
form us  that  "  The  mental  and  moral  functions  are 
the  immediate  products  of  an  independent  sphere  of 
organism,  and  not  to  be  explained  by  anything  lying 
outside  of  that  sphere.  The  brain  and  the  nerves 
have  only  the  physical  part  of  perception  and  motion, 
and  to  some  extent  the  regulation  of  the  functions  to 
perform ;  but  the  soul  cannot  but  be  considered  as 
distinct  from  this  activity  of  the  nerves."^  These 
two  propositions  are  denied  not  only  by  somatists,  but 
also  by  many  psychologists.^ 

^  Luys,  The  Brain  and  its  Functions,  p.  322. 

«  Med.  Juris.,  ^  329. 

'  Bain,  Mind  and  Body ;  Calderwood,  Mind  and  Brain,  et  al. 


THE    IXTEKMEDIATE   THEORY.  105 

The  last  sentence  of  §  329  is  unique :  "  Tliis  theory 
(somatic),  therefore,  fails  in  affording  support  to  any 
practical  system  of  therax3eutics."  A  system,  being 
all  the  known  truths  of  some  department  of  knowl- 
edge, the  whole  of  any  science,  art,  or  doctrine,  cer- 
tainly ought  to  be  self-supporting ;  but  whether  a  sys- 
tem of  therapeutics  is,  or  is  not,  or  whether  the  somatic 
or  any  other  theory  of  mind  or  of  insanity  affords  it 
any  support,  is  entirely  foreign  to  the  subject.  But  it 
may  be,  and  is,  important  whether  any  "practical 
system  of  therapeutics"  supports  any  of  the  theories  of 
mind  or  of  insanity.  According  to  the  somatic  and 
physical  media  theories,  the  administration  of  medi- 
cine to  the  insane  is  rational  and  scientific,  and  the 
therapeutics,  id  est,  the  explanation  of  the  modus 
operandi  of  the  remedies,  is  understood,  because  it  is 
the  operation  of  a  material  remedy  on  a  physical  dis- 
ease ;  but  the  psychological  and  intermediate  theories, 
both  holding  insanity  to  be  a  disease  of  that  incorporeal 
entity,  the  mind,  the  exhibition  of  any  medicine  for  the 
purpose  of  curing  such  immaterial  disease  would  be 
unscientific,  irrational,  and  absurd ;  as  we  assert,  with- 
out fear  of  contradiction,  that  no  physician,  alive  or 
dead,  knows,  or  did  know,  anything  whatever  of 
the  therapeutic  action  of  any  medicine  in  any  disease 


106       MEDICO-LEGAL   KELATIONS   OF   INSANITY. 

of  the  mind  whatever,  if  that  entity  can  be  diseased. 
While  from  the  well-estabHshed  effects  of  medicines, 
intelligently  administered,  in  many  forms  of  insanity, 
very  strong  evidence  is  furnished  against  the  psycho- 
logical and  ijitei^mediate,  and  in  favor  of  the  somatic 
and  'physical  media  theories. 

§  36.  That  "the  intermediate  theory  is  that  to 
which  the  soundest  psychologists  now  tend"  may  or 
may  not  be  true,  as  it  rests  on  a  bare  assertion  that 
it  does  so.  The  quotation  from  the  works  of  Sir  Wil- 
liam Hamilton  indicates  the  fact  that  he  does  not  be- 
long to  the  extreme  school  of  metaphysicians,  who 
deny  the  reciprocal  influences  of  mind  and  body,  but 
he  does  not  "attribute  to  the  body  and  soul  alike 
originative  influence  in  the  growth  of  mental  diseases," 
which,  as  far  as  we  are  informed,  is  the  distinguishing 
feature  of  the  "intermediate  theory."  Being  some- 
what familiar  with  Sir  William's  admirable  works,  we 
afiirm  that  no  such  doctrine  is  taught  in  his  system 
of  metaj^hysics. 

After  the  assertion  in  §  329  that  the  "  intermediate 
theory  is  most  consistent  .  .  .  with  the  Christian 
standard,"  we  are  surprised  to  find  in  §  332  that  "  the 
intermediate  theory  has  at  least  not  been  rejected  by 
standard    Christian   theologians."     "  O,  what  a  fall 


THE   INTERMEDIATE   THEORY.  107 

was  there,  my  countrymen!"  Further  comment  is 
unnecessary,  especially  as  the  quotations  from  Bishop 
Pearson,  Isaac  Taylor,  Pascal,  and  President  Ed- 
wards (§§  332-335)  do  not  furnish  any  evidence 
either  that  the  body  can  originate  mental  disease,  that 
"  the  intermediate  theory  is  that  to  which  the  sound- 
est psychologists  now  tend,"  or  that  it  is  the  "  most 
consistent  with  the  Christian  standard,"  and,  as  we 
have  given  below  the  whole  of  the  authors'  claims  in 
support  of  the  intermediate  theory,  we  leave  our 
readers  to  judge  of  the  correctness  of  our  conclu- 
sions. 

§  37.  Against  the  conclusions  reached  in  §  336  we 
have  nothing  to  urge,  in  so  far  as  they  refer  to  the 
somatic  and  psychical  theories,  as  the  conclusions  are, 
that  both  are  found  to  be  impracticable  in  their  apj^li- 
cation  to  the  jurisprudence  of  insanity.  We  are  at  a 
loss,  however,  to  understand  how  the  "  intermediate 
theory"  relieves  "the  doctrine  of  criminal  responsi- 
bility of  some  of  its  chief  difficulties."  As  before 
stated,  it  is  impossible  to  determine  just  ivhat  Messrs. 
Wharton  and  Stille  claim  for  the  intermediate  theory, 
but  for  the  present  that  is  unimportant,  as  they  must 
regard  insanity  as  either  a  physical  or  a  mental  disease. 
If  the  former,  in  what  do  they  differ  from  somatists  ? 


108       MEDICO-LEGAL   KELATIONS   OF    INSANITY. 

If  the  disease  is  physical,  "  tlien  a  criminal  propensity 
is  a  physical  malformation,  for  which  the  defendant  is 
no  more  responsible  than  he  is  for  a  malformation  of 
the  limbs."  If  the  latter,  then  "  insanity,  by  becom- 
ing an  intellectual  lesion,  is  as  much  withdrawn,  it 
may  be  argued,  from  the  casual  power  of  the  will  as 
it  is  on  the  somatic  basis."  Observe,  the  allegation 
"  that  body  and  soul  alike  (have)  originative  influence 
in  the  growth  of  mental  diseases"  does  not  relieve 
them,  because  it  is  the  mind,  the  incorporeal  entity, 
that  is  diseased.  How  originated,  or  by  what  influ- 
enced, is  immaterial.  The  disease  is  "  an  intellectual 
lesion,"  and  therefore  "  it  cannot  be  reached  by  penal 
discipline;  ...  it  rises  above  the  nervous  and  cor- 
poreal systems,"  and,  as  they  say  in  §  329,  is  not  to  be 
explained  by  anything  lying  outside  the  independent 
sphere  of  its  organism.  Therefore  invoking  the  in- 
termediate, even  were  it  an  established  theory,  would 
not,  "  as  above  stated,  relieve  the  doctrine  of  criminal 
responsibility  of  some  of  its  chief  difficulties."  How 
easily  and  completely  are  those  grave  difficulties  re- 
solved in  passing  through  the  alembic  of  the  physical 
media  theory ! 

§  38.  Passing  over  the  peculiarity  that  §  329  begins 
and  §  335  closes  the  discussion  under  the  heading 


THE    IXTERMEDIATE   THEOEY.  109 

"Intermediate  Theoey.  Its  Basis,"  and  that  under 
tlie  next  heading,  "  JEffect  of  Intermediate  Theory  on 
Responsibility,"  the  first  sentence  begins,  "The  in- 
termediate theory,  as  above  stated,  ..."  leading  the 
reader  to  sujjpose  that  the  discussion  of  the  principles 
and  scope  of  the  "theory"  had  been  closed,  a  new 
claim  is  set  w^  in  §  337,  which  is  as  peculiar  as  its 
mode  of  introduction.  We  are  told  that  "  The  inter- 
mediate theory,  however,  teaches  us  that  insanity  (with 
the  exception  of  idiocy  and  certain  hereditary  and  or- 
ganic types)  is  (1)  in  a  large  measure  the  result  of  ner- 
vous and  physical  causes.  .  .  ."  The  vagueness  and 
want  of  persjoicuity  in  enunciating  and  defining  its 
scope  is  the  only  reason  for  supposing  that  the  "  inter- 
mediate theory"  may  so  teach,  as  it  is  nowhere  so  stated 
in,  nor  is  it  reasonably  implied  from,  the  discussion  of 
its  basis.  But  as  the  authors  claim  that  it  does  so  teach, 
(without  any  verified  authority),  let  us  consider  the 
reasonableness,  the  consistency,  of  such  teaching  from 
their  stand-point.  It  is  unfortunate  that  so  large  a 
class  should  be  outside  the  benign  operation  of  their 
"  theory."  Just  how  large  the  class  "  idiocy  and  certain 
hereditary  and  organic  types"  is,  we  do  not  know,  as 
the  term  "organic  type,"  as  applied  to  diseases  of  the 
MIND,  is  inexplicable.     If  the  mind  in  insanity  is 


HO       MEDICO-LEGAL    RELATIONS   OF   INSANITY. 

diseased,  as  taught  by  psychologists  and  by  tlie  "in- 
termediate theory"  (§  329),  then  the  mind,  being  a 
unit,  indivisible,  must  be  organically  diseased  in  all 
cases,  as  to  think  o?  functional  disorde?'  necessarily 
implies  parts,  divisibility,  extension,  and  place.^  If 
the  terms  were,  however,  interpreted  by  the  somatic 
or  physical  media  theories, — disease  of  the  physical 
organism,  —  they  are  rational  and  easily  compre- 
hended. But  if  "insanity  is  in  large  measure  the 
result  of  nervous  and  physical  causes, ^^  in  what  does 
that  view  differ  from  that  of  the  somatist  ?  The  stu- 
dent certainly  ought  to  have  been  furnished  with  at 
least  an  hypothesis  to  which  the  how,  the  where,  and 
the  wherefore  might  have  been  referred,  and  which 
might  have  attempted  a  reconciliation  with  their  pre- 
vious statement  (§  329) .  "  The  mental  and  moral 
functions  are  the  immediate  products  of  an  in- 
dependent sphere  of  organism,  and  not  to  he  ex- 
'plained  by  anything  lying  outside  of  that  sphere. 

^  "  It  has  not  been  always  noticed,  even  by  those  who  deem  them- 
selves the  chosen  champions  of  the  immortality  of  the  soul,  that  we 
materialize  mind  when  we  attribute  to  it  the  relations  of  matter. 
Thus,  we  cannot  attribute  a  local  seat  to  the  soul  without  clothing  it 
with  the  properties  of  extension  and  place,  and  those  who  suppose  this 
seat  to  be  but  a  point  only  exaggerate  the  difficulty." — Sir  William 
HamiltoiVs  Lectures  on  Metaphysics,  p.  356. 


THE   INTERMEDIATE   THEORY.  Ill 

.  .  .  the  soul  cannot  hut   he  considered  as  distinct 
from  this  activity  of  the  nerves." 

We  verily  believe  t£at  sometimes  the  misconduct 
which  induces  insanity  may  be  prevented  or  restrained 
by  penal  discipline,  but  how  that  view  can  be  received 
by  those  believing  that  the  mi7id  is  diseased  is  the 
question  Messrs.  Wharton  and  Stille  will  be  allowed 
to  answer.  If  insanity  is  the  result  of  "  nervous  and 
physical  causes,"  "then  a  criminal"  (or  an  insane) 
"  propensity  is  a  physical  malformation,  for  which  the 
defendant  is  no  more  responsible  than  he  is  for  a  mal- 
formation of  the  limbs.  A  squint  in  morals  ...  is 
no  more  a  fault  than  a  squint  of  the  eyes,"  .  .  .  and, 
"  logically,  neittier  punitive  nor  reformatory  discij)line 
can  be  applied  to  him, — the  first,  because  it  is  unjust, 
the  second,  because  it  is  hopeless"  (§  336).  Nor  is 
the  dilemma  less  embarrassing  for  the  "  intermediate" 
than  for  the  psychological  theory,  as  both  claim  in- 
sanity to  be  a  mental  disease  "  distinct  from  the  activ- 
ity of  the  nerves,"  and  the  "  product  of  an  independ- 
ent sphere  of  organism,"  as  (§  336)  "insanity,  by 
becoming  an  organic  intellectual  lesion,  is  as  much 
withdrawn  .  .  .  from  the  casual  power  of  the  will  as 
it  is  on  the  somatic  basis.  It  cannot  be  reached  by 
penal  discipline.  ...  It  cannot  be  reformed  by  bodily 


112       MEDICO-LEGAL   EELATIONS   OF   IISrSANITY. 

correction ;  and  to  attempt,  therefore,  by  such  correc- 
tion to  reach  it  would  be  both  unjust  and  nugatory." 

§  39.  Mmiia  a  potu,  or  delirium  from  protracted 
drunkenness,  is  given  as  an  exam2Dle  of  voluntarily 
induced  insanity.  They  say,  "  Where  mania  a  potu 
results  from  drink,  the  party  becomes  irrresponsible. 
Where,  however,  he  commits  a  crime  in  a  voluntary 
drunken  fit,  this  drunkenness  avails  him  nothing," 
except  to  relieve  him  from  implied  "  jDremeditated 
malice  or  complex  fraud."  This  view  has  frequently 
had  high  official  recognition,  yet  we  think  it  illogical, 
unjust,  and  dangerous  to  the  best  interests  of  the 
people.  Doubtless  there  may  be  cases  in  which  the 
application  of  those  criteria  might  serve  the  ends  of 
justice,  but  standing  unqualified,  and  unlimited,  as 
they  do,  their  effects  are  sometimes  most  unjust  and 
pernicious. 

When  a  person  drinks  to  excess,  the  act  itself  an 
immorality,  and  continues  that  excess  for  a  few  hours, 
or  it  may  be  a  few  days,  and  in  his  drunken  orgies 
commits  a  crime,  he  is  justly  held  responsible  for  his 
criminal  act.  Is  he  less  guilty  or  less  responsible  if 
he  voluntarily  continues  that  excessive  drinking, 
thereby  increasing  the  primary  immorality,  which 
forms  the  basis  of  crime  in  both  cases;  until  that 


THE   INTERMEDIATE   THEORY.  113 

drunkenness  becomes  mania  a  potu  f  The  position 
is  surely  a  marvel  of  logic  and  consistency.  Declaring 
the  j)erpetrator  of  the  greater  offence  irresponsible, 
absolutely,  without  any  qualification,  appears  to  be  a 
somewhat  erratic  mode  of  "restraining,  if  not  pre- 
venting," the  immorality  which  is  the  potential  cause 
of  crime  in  both  instances.  Would  it  not  be  much 
more  rational  to  restrain  the  habitual  drunkard,  and, 
by  preventing  the  first  immorality,  destroy  the  cause 
of  crime  in  either  condition  ? 

It  cannot  be  held  that  crime  committed  in  the  de- 
lirium of  a  drunken  fit  is  punishable  on  the  ground 
that  the  inebriate  was  rational  at  the  time  he  perpe- 
trated the  crime;  but  on  the  ground  that  getting 
drunk  was  his  own  voluntary  act,  he  knowing,  when 
he  began  to  drink,  that  drunkenness  would  deprive 
him  of  his  reason  and  judgment,  and  that  any  casual 
exciting  cause,  when  irrational,  would  probably  induce 
him  to  commit  some  act  of  folly  or  crime.  Hence  his 
temporary  insanity  does  not  save  him  from  the  penal 
consequences  of  his  act ;  not  because  of  the  transient 
nature  of  his  madness,  but  because  he  voluntarily  de- 
prived himself  of  reason  and  judgment.  Were  the 
inebriation  not  his  voluntary  act,  were  he  compelled 
against  his  will  to  swallow  the  intoxicating  draught, 


114      MEDICO-LEGAL   EELATIONS   OF   INSANITY. 

there  could  no  responsibility  attach  to  him  for  any 
act  done  under  drunkenness  so  induced,  any  more  than 
there  coukl  be  for  acts  done  in  the  delirium  of  fever, 
because  in  neither  case  could  the  person  prevent  the 
loss  of  his  self-control;  therefore,  as  a  general  rule, 
voluntarily  induced  mania  a  potu  should  no  more 
relieve  from  responsibility  than  voluntarily  induced 
drunkenness.  The  argument  supporting  non-respon- 
sibility in  mania  a  potu  is  based  on  the  fact  that  con- 
tinued inebriation  produces  organic  disease,  and  while 
he  is  the  subject  of  that  disease  the  patient  has  not  the 
ability  to  control  himself,  owing  to  the  presence  of  that 
pathological  condition.  At  first  his  drinking  was  his 
own  voluntary  act,  but  continued  indulgence  changed 
the  disorder  of  drunkenness  to  the  organic  disease  of 
mania  a  potu,  by  which  the  will,  reason,  and  judgment 
were  subordinated,  through  diseased  condition  of  the 
brain,  and  desire  and  appetite  intensified,  so  that  the 
ultimate  result  was  not  a  voluntary  act,  but  the  result 
of  the  tyranny  of  a  diseased  organization,  and,  the  dis- 
ease being  a  progressive  one,  the  law  or  society  should 
have  interfered  and  prevented  its  culmination.  Where 
a  person  drinks  excessively  and  continuously  for  a  long 
time,  steadily  becoming  more  and  more  debased,  until 
the  end  can  be  predicated  almost  with  certainty,  both 


THE   INTERMEDIATE   THEORY.  115 

the  officers  of  the  law  and  society  being  cognizant  of 
the  fact,  and  neither  interposing  to  prevent  the  con- 
summation which  is  ahnost  inevitable ;  are  not  both 
morally  almost  accessories  before  the  fact  to  any  crime 
committed  by  the  inebriate  after  the  loss  of  his  reason? 
Inasmuch  as  they  did  not  prevent  him  from  depriv- 
ing himself  of  reason  when  they  could,  and  should, 
and  when  they  knew  that  he  could  not  or  would  not 
restrain  himself,  did  they  not  virtually  waive  all  moral 
right  to  inflict  punishment  upon  him  ?  And  for  this 
reason  the  law  humanely  relieves  the  maniac  from 
responsibility.  Such  is  the  line  of  defence  for  the  law 
as  it  stands,  and  while  we  acknowledge  the  cogency 
and  force  of  the  reasoning,  yet  we  think  the  original 
objection  much  stronger, — strong  enough  at  least  to 
warrant  the  question  of  responsibility  or  non-respon- 
sibility being  made  an  open  one,  each  case  to  be  decided 
upon  its  merits  as  testified  to  by  competent  experts 
without  the  interposition  of  fallacious  legal  tests.  We 
differ  toto  coelo  from  any  authority  which  holds  that 
mania  a  potu,  or  any  disease  which  is  "  the  result  of 
nervous  or  physical  causes,"  can  be  determined  by 
"  tests"  from  "  the  analogies  of  the  English  common," 
or  any  other  common,  or  statutory,  "  law,"  or  by  any 
system  of  "  tests,"  except  where  such  tests  are  applied 


116      MEDICO-LEGAL   RELATIONS   OF   INSA^TY. 

by  experts, — tests  not  of  responsibility,  but  of  disease. 
As  this  view  of  the  province  of  exj^erts  is  fully  dis- 
cussed in  the  next  chapter,  we  dismiss  the  question, 
after  indicating  the  way  in  which  the  unqualified 
statement,  that  "  where  mania  a  jpotu  results  from 
drink  the  party  becomes  irresponsible,"  may  be  made 
a  source  of  danger  to  the  community.  One  source  of 
danger  arises  from  the  transitory  nature  of  the  disease, 
which  usually  lasts  but  a  few  days.  A  good  actor, 
well  informed  as  to  his  part,  feigning  mania,  may/<?r 
a  few  days  so  successfully  perform  his  assumed  role 
as  to  deceive  the  most  experienced  expert,  but,  who 
would  be  unmasked  were  he  to  attempt  the  same  im- 
position for  months  or  even  weeks.  Again,  suppose 
a  bad  man,  desirous  of  revenge  for  some  real  or 
supposed  grievance,  knowing  that  the  law  would  hold 
him  irresponsible  for  any  and  every  act  while  he  was 
the  subject  of  mania  a  'potu ;  might  he  not  drink 
excessively  for  the  very  purpose  of  inducing  the 
mania  which  would  effectually  shield  him  from  pun- 
ishment were  he  to  gratify  his  malignant  bent  by  the 
perpetration  of  any  crime  however  enormous  ?  After 
a  few  days  of  hard  drinking,  not  necessarily  to  pro- 
found intoxication,  he  finds  phantoms  occasionally 
flit  athwart  his  vision  ;  he  takes  one  more  drink,  the 


THE   INTERMEDIATE   THEOEY.  117 

first  effect  of  whicli  is  to  brace  up  liis  shaky  condi- 
tion and  dispel  the  phantom  forms,  then  he  commits 
the  intended  crime  to  avoid  the  responsibihty  for 
which  he  has  been  preparing  by  a  deliberate  course 
of  dissipation ;  his  crime  committed  with  its  attend- 
ant excitement,  his  arrest,  and  the  abrupt  stoppage 
of  his  stimulants,  he  becomes  in  a  few  hours  the  un- 
feigned subject  of  a  severe  attack  of  mania  a  potu; 
by  such  a  course,  requiring  much  less  cunning  in  plan- 
ning and  much  less  judgment  and  ability  in  execution 
than  are  often  exhibited  by  criminals,  he  goes  un- 
whipped  of  justice  for  a  crime  perpetrated  with 
coolness  and  deliberation,  because  "  the  analogies  of 
English  common  law  give  as  a  safe  test"  that  "  where 
mania  a  potu  results  from  drink  the  party  becomes 
irresponsible."^  Where  a  person,  not  an  habitual 
drunkard,  suddenly  commences  a  course  of  inebria- 
tion and  continues  it  until  crime  and  mania  a  'potu 
supervene,  all  the  circumstances  and  all  the  motives 
ought  to  receive  the  most  rigid  scrutiny,  and  in  some 
cases  the  whole  course  of  conduct  will  be  found  to 


^  The  above  supposed  case  is  not  a  draft  upon  the  imagination,  but, 
rather  substantially  a  report  of  what  I  am  morally  certain,  actually 
occurred  in  two  cases  which  transpired  under  my  personal  observa- 
tion.— Author. 


118       MEDICO-LEGAL   RELATIONS   OF   INSANITY. 

have  been  one  of  deliberate  design  tlirougliout.  Who 
dares  to  say  that  such  a  person  is  less  f  esponsible  than 
if  the  crime  had  been  committed  by  him  in  a  drunken 
fit  ?  May  not  the  "  legal  test,"  which  is  intended  to 
protect  society  and  punish  crime,  be  thus  easily  con- 
verted into  a  cloak,  under  cover  of  which  the  most 
horrible  crimes  may  be  perpetrated  with  impunity  ? 

§  40,  Ilania  a  potu  being  an  organic  disease,  must, 
with  all  of  its  class,  take  its  place  with  "  idiocy  and 
certain  hereditary  and  organic  types."  What,  then, 
remains  of  insanity  to  be  benefited  by  the  application 
of  the  "  intermediate  theory,"  as  the  exce^Dtions,  even 
according  to  Messrs.  Wharton  and  Stille,  cover  nearly 
the  whole  range  of  disordered  mental  manifestations  ? 

Having  somewhat  closely  followed  the  "interme- 
diate theory"  from  the  statement  of  "  its  basis"  to  the 
close  of  its  "effects"  on  "responsibility,"  the  following 
conclusions  are,  we  think,  correctly  reached : 

§  41.  {a)  That  the  name  "  intermediate"  is  a  mis- 
nomer, {b)  That  it  cannot  correctly  be  considered  a 
theory,  because  (1)  no  exjDlanation  of  its  modus  ope- 
randi has  been  offered ;  (2)  because  no  verified  facts  or 
conclusive  arguments  have  been  furnished  to  establish 
the  chief  factor  of  its  basis, — id  est,  that  the  body  origi- 
nates diseases  of  the  mind,     ic)  That,  considering  the 


THE   INTERMEDIATE   THEORY.  119 

intermediate  as  a  modification  of  the  somatic  and  psy- 
chological theories,  the  modifications  should  have  been 
as  expHcitly  stated,  as  fully  explained,  and  as  com- 
pletely authenticated  as  should  be  an  original  theory ; 
which  has  not  been  done,  nay,  has  scarcely  been  at- 
tempted, id)  That,  waiving  the  hare  assertion  that 
the  "  intermediate"  is  a  "  theory,"  there  appears  to  be 
no  reason  for  considering  it  anything  more  than  an 
hypothesis,  "a  proposition  or  princijDle  assumed  or 
taken  for  granted,"  to  harmonize  some  of  the  phe- 
nomena of  insanity  with  the  common  law ;  and  that 
(e),  as  almost  all  the  classes  of  insanity  are  among  the 
"exceptions,"  even  assuming  the  "intermediate"  to  be 
an  established  theory  (which  is  not  the  fact),  Messrs. 
Wharton  and  Stille  have  failed  to  show  how  it  to  any 
appreciable  extent  "  relieves  the  doctrine  of  criminal 
responsibility  of  some  of  its  chief  difficulties."  And 
(/),  finally,  that  an  hypothesis  or  unauthenticated 
theory  such  as  the  "intermediate"  does  not  possess 
the  necessary  stability  or  scientific  accuracy  to  be 
with  any  propriety  used  as  a  basis  for  "  the  philoso- 
phy of  the  common  law  doctrine  of  insanity." 


CHAPTER    V. 

EXPERTS. 

Definition  of  Experts  in  Insanity — General  Medical  Practitioners  are 
not  Experts  in  Insanity — Non-Experts  ought  not  to  be  allowed  to 
give  Evidence  as  Experts — Result  pernicious  when  so  allowed — 
Precedent — Many  Legal  "Precedents"  discarded  Medical  Opin- 
ions— Importance  of  studying  the  Reasons  which  underlie  Judicial 
Decisions — Conflict  between  Expert  Opinions  and  Legal  Tests — 
The  Question  of  Responsibility  considered — Crime  cannot  be  com- 
mitted by  an  Insane  Person — Insanity  a  Question  of  Fact  for  the 
Jury,  not  of  Law  for  the  Judges — Only  Experts  can  diagnose  In- 
sanity— Hypothetical  Cases — How  prepared — Want  of  Opportu- 
nity and  Skilled  Observation — Prepared  by  Interested  Parties — 
Deceptive  and  Untrustworthy — Alleged  Insane  Prisoners  should 
be  sent  to  Insane  Asylums,  and  Superintendents  after  Examina- 
tion should  depose  directly  to  the  Question  of  Insanity — Sanity  or 
Insanity  of  Testators — Guiteau  Trial — Responsibility  already  fixed 
by  Law — Necessity  for  Amendments  in  the  Law — Judges'  Re- 
sponsibility— Experts'  Irresponsibility — Remedy — Insane  Prisons 
should  be  provided — Scheme  for  securing  Responsible,  Trustwor- 
thy Experts — Benefits  that  would  accrue — Contradictory  Legal 
and  Expert  Tests  of  Insanity  cannot  both  be  correct — Judges  vs. 
Judges — No  settled  Legal  Criteria  of  Insanity — Criminal  Legal 
Tests,  if  applied,  would  turn  Thousands  of  Lunatics  loose  from 
Insane  Asylums — Mode  of  examining  Expert  Witnesses  criticised 
— Probate  Insanity  Trials — Important  Discoveries  and  Improve- 
ments hindered  by  Excessive  Fear  of  Innovation — Harvey,  Jen- 
ner,  Simpson — Qualification  of  Experts — Medical  Profession — Re- 
sponsibility and  Services — Brothers,  Expert  and  Judge — Official 
Reconciliation  of  Conflicting  Expert  Opinions — "xVmerican  Medi- 
120 


EXPEKTS.  121 

cal  Association" — Vexed  Questions  settled — "  Association  of  Med- 
ical Superintendents  of  American  Institutions  for  the  Insane" — 
Experts  worthy  of  Trust — Conclusions. 

§  42.  "  Experts,  wlio  are  they,  and  what  are  their 
qualifications  ?"  ask  Messrs.  Wharton  and  Stille,  and 
they  reply,  "  Here  emerges  the  first  difiiculty  in  this 
vexed  question.  Experts  are  to  have  a  certain  degree 
of  credit  attached  to  their  testimony,  and,  indeed,  ac- 
cording to  views  expressed  in  1871  in  New  Hamp- 
shire, are  to  declare  what  irresponsibility  is ;  but  who 
are  experts  ?  Forensic-psychological  medicine  is  the 
specialty,  and  an  exj)ert  in  this  specialty  must  be 
skilled  in  three  departments  of  science, — (1)  law  suf- 
ficient to  determine  what  is  the  responsibility  which 
is  to  be  the  object  of  the  contested  capacity ;  (2)  psy- 
chology, so  as  to  be  able  to  speak  analytically  as  to 
the  properties  of  the  human  mind ;  (3)  medicine,  so 
far  as  concerns  the  treatment  of  the  insane,  so  as  to 
speak  inductively  on  the  same  subject.  If  either 
of  these  factors  is  wanting,  a  witness  cannot  be  tech- 
nically an  expert."^  "  But  while  such,  on  pure 
rules  of  law,  is  strictly  the  case,  the  courts  have  modi- 
fied first  one  and  then  another  of  these  requisites, 

1  Wharton  and  Still6,  Med.  Juris.,  ^  275. 


122      MEDICO-LEGAL   EELATIONS   OF   INSANITY. 

until  it  is  difficult  to  see  what  special  qualifications 
are  still  to  be  viewed  as  constituting  experts."  ^ 

The  last  clause  quite  explains  why  the  subject  of 
expert  testimony  is  such  a  "  vexed  question."  Doubt- 
less, in  the  earlier  trials,  where  the  element  of  insan- 
ity was  a  constituent,  it  was  very  difficult,  if  not  quite 
impossible,  to  find  persons  having  the  necessary  qual- 
ifications required  by  the  "  pure  rule  of  law,"  and  of 
necessity  judges  had  to  dispense  with  "  first  one  and 
then  another  of  the  requisites"  of  those  whose  testi- 
mony they  were  obliged  to  receive  and,  to  some  ex- 
tent, depend  upon  in  insanity  trials. 

But  whatever  may  have  been  the  necessity  for 
modifying,  or  rather  obliterating,  the  standard  of  the 
qualifications  of  experts  in  the  past,  there  is  none 
now,  as  there  are  to  be  found  in  every  State  of  the 
Union  those  who  are  well  skilled  in  the  "three  de- 
2)artments  of  science,"  and  when  there  are  such  gen- 
tlemen, experts  in  the  correct  use  of  the  term,  to  be 
had,  it  is  passing  strange  that  they  are  not  exclusively 
used  by  the  courts,  where  expert  testimony  in  insanity 
cases  is  required.  We  cannot  too  strongly  condemn 
the  reprehensible   practice  which  now  generally  ob- 

1  Wharton  and  Stills,  Med.  Juris.,  §  276. 


EXPERTS.  123 

tains,  of  requiring  any  person  who  writes  M.D.  after 
his  name  (and  even  the  right  to  do  that,  often  a  self- 
constituted  one)  to  go  into  court  and  give  evidence  as 
an  ex^^ert,  while  he  knows  nothing  that  in  a  strict, 
nay,  even  in  a  general,  sense  could  be  called  the 
special  qualification  which  must  be  possessed  by  the 
individual  to  make  him  worthy  the  designation,  ex- 
pert in  insanity. 

§  43.  Judges  ought  to  know,  lawyers  ought  to 
know,  and  the  public  ought  to  know,  that  general 
medical  practitioners,  however  able  and  deserving  of 
confidence  they  may  be  as  such,  are  not  experts  in 
insanity ;  that  no  amount  of  general,  will  compensate 
for  the  want  of  special,  knowledge ;  that  they  know  no 
more  respecting  insanity  than  any  equally  well  edu- 
cated person  outside  the  profession  of  medicine ;  and 
to  the  practice  of  using  such  physicians  as  experts  is 
due  largely  the  disgraceful  uncertainty  of  the  verdict 
in  every  trial  in  which  insanity  is  an  element.  Is 
it  strange  that  witnesses  who  have  only  vague,  unde- 
fined ideas  of  a  subject  so  complex,  should  give  un- 
scientific and  absurdly  incorrect  and  contradictory 
evidence  respecting  it?  Are  those  who  j)erpetuate 
the  practice  of  requiring  or  allowing  such  persons 
to  give  testimony  as  experts,  when  experts  in  the 


124      MEDICO-LEGAL   KELATIONS   OF    INSANITY. 

proper  sense  of  the  term  may  be  had,  free  from  the 
grave  responsibility  of  materially  aiding  the  uncer- 
tainty of  insanity  trials?  If  the  evidence  on  which 
juries  are  obliged  to  form  their  opinions  of  the  facts 
on  which  their  verdicts  are  based  is  unscientific  and 
untrustworthy,  it  necessarily  follows  that,  in  giving  a 
true  verdict,  according  to  the  evidence,  that  verdict 
must  be  as  unreliable  and  untrustworthy  as  is  the 
evidence  on  which  it  is  based,  and  the  punishment  of 
insane  persons  or  the  escape  of  criminals  becomes  a 
matter  of  hap-hazard.  The  statement  of  Chief-Jus- 
tice Chapman,  of  Massachusetts,  in  the  trial  of  An- 
drews, in  1868,  was  in  one  sense  undoubtedly  correct : 
" .  .  .it  often  appears  that  experts  can  be  found  to 
testify  to  any  theory,  however  absurd."  His  honor, 
however,  appears  to  have  ignored  the  fact  that  the 
court  was  possibly  more  blamable  than  were  those 
whom  he  was  censuring,  because  the  court,  knowing 
that  the  witnesses  had  not,  or  not  knowing  that  they 
had,  the  necessary  qualifications  to  constitute  them 
experts,  compelled  or  allowed  them  to  testify  as  such. 
After  receiving  the  testimony  of  persons  who  had  no 
special  knowledge,  who,  in  a  critical  sense,  were  utterly 
ignorant  of  the  subject  on  which  they  gave  evidence  as 
experts,  the  taste  and  justice  might  be  questioned  in  the 


EXPERTS.  125 

remark,  by  the  same  judge,  "I  think  the  opinions 
of  experts  are  not  so  highly  regarded  now  as  they 
formerly  were."  The  true  expert  (the  qualification 
appears  to  be  necessary  from  common  usage)  should, 
nay,  must,  know  law,  psychology,  and  medicine.  The 
general  medical  jDractitioner,  on  whom  the  courts 
generally  depend  for  expert  testimony  in  insanity 
cases,  knows  medicine,  but  nothing  of  law  or  psycho- 
logy, and  yet  is  expected  to  give  correct  evidence 
where  a  knowledge  of  all  three  sciences  is  neces- 
sary, a  proposition  about  as  reasonable  as  requiring 
from  one  known,  to  find  the  values  of  two  unknown 
quantities. 

§  44.  When  graduating,  general  medical  practi- 
tioners are  required  to  know  something  of  chem- 
istry, gynaecology,  microscopy,  surgery,  including 
surgical  operations  of  the  eye  and  ear,  and  yet  they 
are  not  considered  experts  in  any  of  these  departments, 
would  not,  for  example,  be  employed  to  make  a  quanti- 
tative chemical  analysis  or  microscopic  examination  of 
the  viscera  and  their  contents  for  the  detection  of 
poison,  nor  would  they  usually  be  allowed  to  testify  in 
a  suit  for  malpractice  where  surgical  operations  of  the 
eye  or  ear  had  been  performed,  unless  they  could  show 
sufficient  special  study  and  training,  nor  would  they  be 


126      MEDICO-LEGAL   EELATIONS   OF   INSANITY. 

as  chemists,  microscopists,  oculists,  or  aurists.  Those, 
and  those  only,  who  could  show  that  by  special  study 
and  training  they  had  acquired  the  necessary  exact 
knowledge  in  their  several  specialties  to  constitute 
them  experts,  would  be  permitted  to  testify  as  such. 
It  may  be  urged  here,  that  as  the  expert  has  no  knowl- 
edge as  to  what  the  mind  is  jper  se,  therefore,  not 
knowing  its  normal  condition,  he  cannot  understand 
its  abnormalities.  But  let  it  be  borne  in  mind  that 
the  physician  does  not  know  what  either  fever  or 
inflammation  is  per  se,  yet  the  symptoms  of  these  dis- 
eases point  unerringly  to  the  pathological  condition, 
which  he  does  understand,  and  so  in  like  manner  do 
the  symptoms — the  mental  manifestations,  point  un- 
erringly to  the  pathological  condition  of  the  "physical 
media"  on  which  they  depend. 

Without  a  general  knowledge  in  all  of  the  above 
departments  a  student  of  medicine  would  not  be  per- 
mitted to  graduate,  yet  in  such  cases  he  is  properly  not 
considered  an  expert,  while  in  insanity  cases,  in  which 
the  student  in  medicine  received  no  instruction,  was 
asked  no  questions  at  graduation,  he  is  permitted,  nay, 
compelled,  to  give  evidence  as  an  expert.  There  is  not 
a  medical  college  in  the  United  States  that  in  its  reg- 
ular curriculum  ever  graduated  an  expert  in  insanity 


EXPERTS.  127 

INIany  colleges  have  not  even  a  chair  of  medical  juris- 
prudence ;  many  that  have,  require  only  half  the  time 
to  be  devoted  to  that  branch  that  is  required  in  chem- 
istry, anatomy,  surgery,  midwifery,  and  practice  of 
medicine ;  and  even  in  those  colleges  in  which  medical 
jurisprudence  receives  the  largest  amount  of  consider- 
ation and  attention,  the  instruction  is  chiefly  directed 
to  the  detection  of  poisons,  the  evidences  of  criminal 
abortions,  infanticides,  malpractice,  the  method  of 
making  post-mortem  examinations,  giving  testimony 
in  court,  etc.,  while  the  subject  of  insanity  is  very 
briefly,  if  at  all,  discussed,  for  the  sufiicient  reason 
that  the  professor  has  not  the  necessary  time  at  his 
command  to  give  more  than,  at  most,  a  cursory  glance 
at  that  most  complex  of  all  the  specialties  of  our  pro- 
fession, as  any  person  must  be  well  aware  who  has 
made  any  proficiency  in  the  study  of  "  medico-legal 
relations  of  insanity." 

§  45.  The  question  may  be  asked,  "Why  is  it  neces- 
sary to  have  specialties  in  the  medical  profession? 
For  the  same  reason  that  they  exist  in  all  professions. 
The  field  of  investigation  in  scientific  medicine  is  too 
large,  too  extensive,  to  be  fully  occupied  by  any  one 
man,  even  in  a  long  lifetime  of  close  study  and  appli- 
cation.    By  peculiar  adaptability,  or  by  the  force  of 


128       MEDICO-LEGAL   RELATIONS   OF   INSANITY. 

circumstances,  one  person  devotes  his  time  and  ability 
to  an  exhaustive  study  of  one  branch  of  the  great 
tree,  to  the  comparative  neglect  of  the  other  branches, 
and,  pari  passu,  knows  more  of  the  subject  of  his 
special  study  than  does  the  general  practitioner  or 
the  specialist  in  any  other  department ;  hence,  if  our 
eminent  specialists  do  not  know  all  that  is  to  be 
known  in  their  several  departments,  they  certainly 
do  know  all  that  is  known,  and  therefore  if  their 
conclusions  are  not  always  entirely  accurate,  they 
are  the  nearest  to  accuracy  that  can  by  any  possi- 
bility be  obtained.  The  specialty  of  insanity  requires 
more  varied  and  more  extensive  study  than  any 
other  specialty  in  our  profession,  and  yet  those  in 
our  profession  who  have  never  given  it  any  special 
study,  who  in  a  critical  sense  know  nothing  about  it, 
are  the  experts,  so  called,  on  whose  testimony  ques- 
tions of  the  most  momentous  importance  are  usually 
determined. 

§  46.  At  the  meeting  of  the  American  Medical 
Association,  held  at  Chicago  in  1877,  the  writer 
read  a  paper  before  the  "  Section  on  lledical  Juris- 
prudence," in  which  it  was  stated,  "...  And  yet, 
because  a  gentleman  has  the  right  to  add  M.D.  to 
his  name,  he  is  compelled  to  go  to  court  and  give 


EXPERTS.  129 

opinions  as  an  expert  (on  insanity)  on  a  subject  that 
lie  was  not  required  to  study  when  acquiring  his 
medical  education,  and  probably  has  not  had  any  fit- 
ting opportunity  for  studying  since  his  graduation ;  in 
fact,  a  subject  of  which  he  knows  no  more  than  any 
other  educated  gentleman  who  has  given  the  matter 
no  special  study  whatever ;  and  on  such  evidence  the 
most  important  of  all  earthly  interests,  life,  liberty, 
and  property,  are  determined."^  And  that  paper, 
after  thorough  discussion,  was  unanimously  received 
and  directed  to  be  printed  in  the  proceedings  of  the 
Association,  the  highest  commendation  of  that  repre- 
sentative body,  which  authoritatively  declares  the 
opinions  of  the  medical  profession  of  the  United  States. 
(Reference  is  here  made  to  what  is  generally  known 
as  "  Regular  Medicine^) 

§  47.  Probably  some  of  my  readers  may  think  that 
there  is  a  waste  of  energy  in  proving  that  which  ap- 
pears so  reasonable,  that  few,  if  any,  will  doubt  the 
propriety  or  correctness  of  the  position  advocated. 
Theoretically,  the  conclusions  here  arrived  at  are  ad- 
mitted by  almost  all  the  members  of  both  professions, 
law  and  medicine ;  but,  strange  as  it  may  seem,  both 


^  Vide  Transactions  Am.  Med.  Assoc,  vol.  xxviii.  p.  366. 


130      MEDICO-LEGAL   EELATIONS   OF    INSANITY. 

professions  practically  deny  them.  Lawyers  still  com- 
pel by  subpoena  or  warrant  the  attendance  at  court  of 
general  medical  practitioners  to  testify  as  experts  in 
insanity  cases  as  heretofore,  and,  as  of  old,  the  M.D., 
instead  of  stating  to  the  court  and  jury  that  he  is  not 
an  expert  in  insanity,  as  required,  gives  his  crude, 
unscientific,  and  hence  untrustworthy  testimony,  and 
such  opinions  are  received  by  juries  as  the  authoritative 
conclusions  of  experts,  when  the  witness  on  the  stand 
often  does  not  know  enoui^h  of  the  subject  to  be  aware 
of  the  profound  deaths  of  his  own  ignorance,  or  how 
much  more  a  specialist  in  that  department  must  know 
before  he  would  be  properly  entitled  to  give  expert 
testimony  in  such  cases.  Very  often  three,  four,  or 
half  a  dozen  such  witnesses  are  called  for  the  prosecu- 
tion, and  as  many  for  the  defence,  all  testifying  as 
experts,  when  there  is  not  a  single  expert  among 
them, — not  one  whose  testimony  ought  to  have  been 
received  by  the  court,  because  none  of  them,  in  a  sci- 
entific sense,  knew  anything  of  the  subject  regarding 
which  he  testified.  Who  is  responsible  for  the  contin- 
uation of  this  pernicious  practice  ?  Both  lawyers  and 
doctors  are  to  blame,  and  both  professions  ai-e  respon- 
sible, because  both  know  better,  and  it  is  sometimes 
difficult  to  suppose  them  free  from  improper  motives 


EXPERTS.  •  131 

while  perpetuating  this  baleful  practice.  Medical 
witnesses  in  insanity  cases  are  often  allowed  to  testify 
as  experts  without  even  being  asked  whether  they 
consider  themselves  experts  or  not.  "Were  that  ques- 
tion put  directly  to  them,  few  would  answer  in  the 
affirmative ;  but  a  simple  answer  in  the  affirmative  is 
not  enough;  they  ought  to  be  required  to  state  the 
course  of  study  pursued,  opportunities  had,  and  length 
of  time  devoted  to  acquiring  a  knowledge  of  their 
sjpecialty,  just  as  surgeons,  oculists,  aurists,  architects, 
engineers,  etc.,  are  required  to  show  that  they  have  a 
special  knowledge  in  their  several  departments  before 
they  are  permitted  to  testify  as  experts.  It  is  not  a 
matter  of  surprise  that  unskilled  persons  testifying  as 
experts  in  insanity  cases,  where  the  gravest  interests 
of  humanity  are  at  stake,  should  mislead,  instead  of 
instructing,  the  court  and  jury,  but  it  almost  passes 
belief  that  the  courts  will  permit  such  testimony  to  be 
given  or  received ;  and  to  that  practice  is  largely  due 
the  opprobrium  attached  to  the  uncertainty  of  verdicts 
in  insanity  cases. 

§  48.  When  one  of  the  ablest  medico-forensic 
writers  of  the  age  declares,  referring  to  such  uncer- 
tainty in  verdicts,  that  "  Were  the  issue  to  be  decided 
by  tossing  up   a   shilling,  ...  it   could  hardly  be 


132       MEDICO-LEGAL   EELATIOI^S    OF   INSANITY. 

more  uncertain,"^  there  is  surely  sufficient  reason 
for  judges,  and  all  persons  in  any  way  influencing 
the  administration  of  justice,  to  change  from  the 
mode  of  procedure  which  has  brought  them  so  much 
obloquy,  esj)ecially  as  the  system  is  unsound  in  theory 
as  well  as  most  pernicious  in  practice,  derogatory 
to  the  dignity  of  the  courts,  unjust  to  the  science 
of  medicine  and  experts  j)roper,  demoralizing  to  ex- 
perts falsely  so  called,  eminently  unjust  to  litigants 
and  unsatisfactory  to  the  people ;  and  "  the  practice" 
is  adhered  to  for  no  better  reason  of  which  we  are 
aware  than  that  of  following  ^^  'precedent P  Junius 
says,  "  One  precedent  creates  another.  They  soon 
accumulate,  and  constitute  law.  What  yesterday  was 
fact,  to-day  is  doctrine.  Examples  are  supposed  to 
justify  the  most  dangerous  measures;  and  where 
they  do  not  suit  exactly,  the  defect  is  supplied  by 
analogy."  ^ 

§  49.  How  many  of  the  "precedents"  and  legal 
maxims  referring  to  insanity  have  had  their  origin 
and  development  as  described  by  Junius  ?  All  that 
we  now  deem  ancient  was  at  one  time  new,  and  what 
we  now  defend  by  examples  on  a  future  day  will  stand 

^  Maudsley,  Responsibility  in  Mental  Diseases,  p.  101. 
*  Junius,  Dedication,  p.  vi. 


EXPEKTS.  133 

as  precedents.^  On  examination  these  "precedents" 
will  be  found  to  be  largely  based  on  tlie  opinions  of 
physicians,  and  that,  too,  of  an  age  when  the  study  of 
medicine  included  the  occult  and  marvellous;  when 
superstition  and  vain  speculation  occupied  the  time 
noAV  devoted  to  reason  and  scientific  observation ;  when 
mstead  of  rational  treatment,  spells  and  incantations 
were  among  the  most  potent  remedial  agents  in  their 
pharmacopoeia ;  when  the  then  medical  profession  had 
no  rational  views  on  insanity,  but  considered  it  a 
special  visitation  of  the  Deity  in  his  anger,  or  attrib- 
uted it  directly  to  demoniacal  possession.  Reiteration 
of  false  medical  opinions  of  past  ages,  even  by  the 
most  distinguished  judges  and  medical  jurists,  will  not 
make  them  correct,  nor  will  designating  them  "  pre- 
cedents" and  "legal  maxims"  make  them  a  whit  more 
trustworthy;  being  scientifically  unsound  when  first 
uttered,  unsound  they  remain ;  and  are  most  per- 
nicious when  used  to  override  the  scientific  evidence 
of  reliable  experts. 

Judge  Cooley,  the  distinguished  ex-chief-justice  of 
Michigan,  eminent  for  his  legal  ability,  deprecates  the 
study  of  "precedents"  and  "decisions,"  instead  of  "en- 

1  "  Omnia  quae  nunc  vetustissima  creduntur,  nova  fuere :  et  quod 
hodie  exemplis  tuemur,  inter  exempla  erit." — Tacitus. 


134       MEDICO-LEGAL    EELATIONS    OF    INSANITY. 

deavoring  to  get  right  clown  to  the  reasons"  which  un- 
derlie all  correct  decisions.  He  says,  "  I  suppose  your 
worthy  chancellor  has  long  before  this  said  to  you  that 
the  principal  thing  in  giving  instruction  in  the  law  is 
to  teach  young  men  how  best  to  employ  their  reason- 
ing faculties — how  to  think — and  that  this  is  the  main 
thing  in  the  practical  administration  of  the  law.  To 
be  a  good  lawyer  is  not  so  much  to  have  a  knowledge 
of  what  is  in  the  books — that  particular  judges  have 
decided  so  and  so;  it  is  not  even  to  have  the  faculty 
of  bringing  together  the  decisions  that  have  been 
made  from  time  to  time  with  a  view  to  using  them. 
A  faculty  of  making  ready  use  of  decisions  is  of 
course  worth  a  great  deal  to  us ;  but  there  is  always 
danger  that  it  may  prove  unfortunate,  in  that  it 
teaches  us  to  rely  too  much  on  what  courts  have 
said,  instead  of  endeavoring  to  get  right  down  to  the 
reason  of  things  upon  w^J^ich  all  judicial  decisions,  if 
they  be  of  any  value,  must  rest. 

"And  now  I  believe  that  the  main  thins;  that  is 
to  be  taught  in  schools  or  in  lawyers'  offices,  where 
young  men  are  trained,  the  way  to  receive  any  valu- 
able training  at  all,  is  to  reach  the  reason  of  things 
that  underlie  the  rules  of  law  which  are  laid  down  for 
our  guidance;  and  that  the  most  unfortunate  thing 


EXPERTS.  135 

that  can  ever  happen  to  a  young  man  as  he  starts 
out  to  fit  himself  for  the  profession  of  the  law  is  to 
learn  to  rely  upon  rules  without  reaching  under  these 
rules,  to  see  upon  what  they  are  based.  If,  stand- 
ing here  for  the  moment  to  look  into  these  eager 
faces  I  can  impress  that  one  idea  upon  you,  that  you 
should  give  your  principal  time,  thought,  and  atten- 
tion, while  you  are  in  this  school,  or  while  engaged  in 
the  practice  of  the  law,  to  reaching  the  reasons  that 
underlie  the  law,  it  will  give  me  great  pleasure  to 
have  been  here ;  and  to  anticipate  the  time  when  you 
shall  be  in  successful  practice,  that  you  will  remember 
that  in  this  informal  talk  I  endeavored  to  impress 
upon  you  the  transcendent  importance  of  a  study  of 
principles."  ^ 

Judge  Doe  says,^  "  When  the  authorities  of  the  com- 
mon law  began  to  deal  with  insanity,  they  adopted  the 
prevailing  medical  theories.  The  distinction  between 
the  duty  of  the  court  to  decide  questions  of  law,  and 
the  duty  of  the  jury  to  decide  questions  of  fact,  was 
not  appreciated  and  observed  as  it  is  now  in  this  State. 
.  .  .  Without  any  conspicuous  or  material  partition 
between  law  and  fact,  without  a  plain   demarcation 

^  Informal  Address  to  Law  Students,  St,  Louis,  Mo.,  May  10,  1882. 
^  State  vs.  Pike,  49  N.  IL,  399. 


136       MEDICO-LEGAL   RELATIONS   OF   INSANITY. 

between  a  circumscribed  province  of  the  court  and  an 
independent  province  of  the  jury,  the  judges  gave  to 
juries,  on  questions  of  insanity,  the  best  opinions 
which  the  times  afforded.  In  this  manner,  opinions 
purely  medical  and  pathological  in  their  character, 
relating  entirely  to  questions  of  fact,  and  full  of  error 
as  medical  experts  now  testify,  passed  into  books  of 
law,  and  acquired  the  force  of  judicial  decisions.  De- 
fective medical  theories"  (hypotheses  ?)  "  usurped  the 
position  of  common  law  principles.  The  usurpation, 
when  detected,  should  cease.  The  manifest  imposture 
of  an  extinct  medical  theory  pretending  to  be  legal 
authority,  cannot  appeal  for  support  to  our  reason  or 
even  to  our  sympathy." 

As  time  rolled  onward,  and  the  touchstone  of 
science  was  applied,  false  theories,  hypotheses,  and 
superstitions,  that  had  formed  a  considerable  part  of 
"  leech-craft,"  were  discarded  by  the  medical  jirofes- 
sion;  many  of  them  are  doubtless  forgotten;  but, 
strange  as  it  may  seem,  some  of  the  worst  of  these  dis- 
carded erroneous  views  have  been  crystallized  into 
immortality  by  a  sister  j)i'ofession  under  the  digni- 
fied titles  of  "  precedents"  and  "  legal  maxims." 

Until  a  comparatively  recent  date  there  was  no 
rational  care  taken  of  the  insane.     Now  there  are 


EXPERTS.  137 

many  large  asylums,  where  skilled  specialists  watch 
with  scientific  eye  the  many  phases  in  which  insanity 
is  presented,  and  from  the  large  numbers  under  their 
care  these  experts  have  ample  opportunity  for  the 
investigation  of  the  pathological  conditions,  and  their 
comparison  with  the  mental  phenomena  of  the  insane. 
§  50.  The  medical  superintendents  and  their  assist- 
ants in  asylums  for  the  insane  (excepting  a  few  cases 
in  which  political  considerations  prevail  over  personal 
fitness  in  their  appointment)  are  gentlemen  of  high 
culture,  mature  judgment,  and  eminent  for  their  med- 
ical knowledge  and  scientific  attainments,  and  possess- 
ing all  these  qualifications  and  advantages,  they  have 
been,  and  are,  devoting  their  whole  time  to  the  study 
of  insanity  in  every  form  in  which  it  presents  itself. 
Many  of  these  gentlemen  have  also  studied  the  "  legal 
relations  of  insanity,"  and  are,  therefore,  experts  in 
the  proper  use  of  that  term,  as  they  possess  all  the 
qualifications  required  by  Messrs.  Wharton  and  Stille, 
quoted  at  the  beginning  of  this  chapter.  Such  experts 
have  time  and  again  testified  that  many  of  the  so-called 
legal  tests  of  insanity  are  unsound  and  untrustworthy ; 
that  the  "  right  and  wrong"  test  is  unscientific  and 
contrary  to  fact;  and  yet,  with  no  special  knowledge 
of  the  subject,  judges  have  often  charged  juries,  in  the 


138       3IEDIC0-LEGAL    RELATIONS    OF   IXSAXITY. 

face  of  such  expert  testimony,  that  knowledge  of  "right 
and  wrong"  is  the  test  of  insanity.  As  remarked  by 
Judge  Doe,  in  the  very  able  opinion  referred  to,  "  In 
these  cases,  the  testimony  of  the  experts  negatived  the 
idea  that  knowledge  of  right  and  wrong  is  the  test. 
And  the  admission  of  this  evidence,  coupled  witli  the 
rule  given  by  the  court  to  the  jury  that  knowledge 
is  the  test,  brought  the  law  into  conflict  with  itself. 
Either  the  experts  testified  on  a  question  of  law,  or 
the  court  testified  on  a  question  of  fact.  ...  It  is  the 
common  practice  for  experts,  under  the  oath  of  a  wit- 
ness, to  inform  tlie  jury,  in  substance,  that  knowledge 
is  not  the  test,  and  for  the  judge,  not  under  the  oath 
of  a  witness,  to  inform  the  jury  that  knowledge  is  the 
test.  And  the  situation  is  still  more  impressive  when 
the  judge  is  forced  by  an  impulse  of  humanity,  as  he 
often  is,  to  substantially  advise  the  jury  to  acquit  the 
accused  on  the  testimony  of  the  exjDcrts,  in  violation 
of  the  test  asserted  by  himself  ...  If  the  tests  of 
insanity  are  matters  of  law,  the  practice  of  allowing 
experts  to  testify  what  they  are,  should  be  discon- 
tinued; if  they  are  matters  of  fact,  the  judge  should 
no  longer  testify  without  being  sworn  as  a  witness 
and  showing  himself  qualified  to  testify  as  an  exj^ert. 
To  say  that  the  expert  testifies  to  the  tests  of  mental 


EXPERTS.  139 

disease  as  a  fact,  and  tlie  judge  declares  tlie  test  of 
criminal  responsibility  as  a  rule  of  law,  is  only  to 
state  the  dilemma  in  another  for:n  " 

In  answer  to  the  able  reasoning  of  Judge  Doe,  whose 
elaborate  opinion  they  quote  at  length,  Messrs.  Whar- 
ton and  Stille  rej)ly,  "  Is,  then,  responsibility  a  question 
of  fact,  to  be  determined  by  the  jury  on  the  testimony 
of  exp)erts?  Is  the  judge,  on  issues  of  insanity,  to  leave 
the  whole  question,  including  that  of  responsibility, 
to  experts  to  decide,  telling  the  jury  that  they  are  to 
accept  the  experts'  rendering?  Is,  in  other  words, 
the  test  of  criminal  responsibility  a  matter  of  fact,  to 
be  deposed  to  by  experts,  and  found  by  the  jury  on 
their  testimony?  Such  are  the  questions  that  are 
involved  in  the  position  just  stated,  and  which  are  now 
to  be  discussed."^  That  no  injustice  may  be  done  to 
the  learned  authors,  we  quote  below  their  reasoning 
against  the  opinion  of  Judge  Doe.^ 

1  Wharton  and  Stille,  Med.  Juris.,  §  192. 

'  ^  193.  It  is  conceded  by  the  learned  judge  who  delivered  the 
opinion  which  has  last  been  quoted,  and  which  maintains  the  affirmative 
of  the  points  just  stated,  that  the  views  he  advances  are  in  conflict  with 
the  great  body  of  Anglo-American  decisions  on  the  game  topic.  This, 
in  fact,  will  be  abundantly  verified  by  an  inspection  of  the  preceding 
pages,  where  the  course  of  English  and  American  judicial  precedent 
in  this  relation  is  exhibited.  It  is  proposed  now  to  pass  the  question 
of  authority,  therefore,  as  one  that  does  not  admit  of  dispute,  and  to 


140      MEDICO-LEGAL   RELATIONS   OF   INSANITY. 

§  51.  If  the  phrase,  leaving  "  the  whole  question," 
means  simply  the  question  as  to  the  sanity  of  the  in- 

adduce  some  general  reasons  to  show  vrhy,  so  far  from  accepting  the 
positions  which  have  been  so  ably  maintained  by  the  New  Hampshire 
judges,  we  must  reaffirm  the  view  already  announced — that,  while 
experts  may  be  called  to  testify  as  to  states  of  mind  and  conditions  of 
health,  it  is  for  the  court  to  declare  whether  such  states  and  conditions 
constitute  irresponsibility. 

§  194.  First,  let  it  be  remembered  that  American  common  law  courts 
have  no  process  for  the  collectionof  the  opinions  of  experts  on  litigated 
questions  of  criminal  responsibility.  A  case  comes  on  to  be  tried  in 
one  of  our  criminal  courts.  In  the  great  majority  of  our  jurisdictions 
there  is  no  law  by  which  a  commission  can  issue  to  take  the  deposition 
of  witnesses  out  of  the  reach  of  local  process.  Even  in  those  jurisdictions 
where  such  a  law  exists  there  is  no  reported  case  of  a  witness,  residing 
at  a  distance  being  examined  by  deposition.  Indeed,  even  where  this  is 
technically  legal,  the  step  is  one  which  parties  would  be  very  unlikely 
to  take.  An  expert,  in  order  to  give  an  opinion  to  which  the  jury  will 
attach  weight,  must  visit  the  patient  personally.  Hence  it  is  that 
practically,  in  seeking  for  experts,  the  parties  are  limited  to  those 
whom  they  can  produce  on  trial.  Of  course,  when  there  is  wealth,  or 
when  the  State  makes,  as  it  very  rarely  does,  suitable  provision,  experts 
may  be  brought  from  a  distance.  But,  whether  brought  fi-om  a  distance 
or  taken  from  the  immediate  neighborhood,  they  are  open  to  the  very 
serious  objection  that  they  are  unofficial  persons  selected  by  the  party 
calling  them,  because  their  pre-ascertained  views  will  serve  that  party's 
necessities.  For  we  have  in  none  of  our  States  governmental  boards 
of  experts,  chosen  as  independent  arbiters,  on  the  same  'basis  as  our 
courts  of  law.  Hence  it  is  that  the  experts,  whose  testimony  the  jury 
are  to  take,  are  simply  voluntary  theorists.  So  far  as  concerns  the 
defendant,  they  are  called  by  him  because,  from  their  opinions  already 
advanced,  their  views  favor  his  defence.  It  is  by  the  defence,  indeed, 
that  testimony  of  experts  in  issues  of  insanity  is  mainly  produced.  It 
is  natural  that  it  should  be  so,  for  not  only  is  the  burden  of  proof  on 


EXPERTS.  141 

dividual,  the  answer  ought,  unquestionably,  to  be  in 
the  aflSrmative.     Whether   that   practically  includes 

the  defence,  but  the  interest  the  defendant  has  at  stake  is  so  enormous, 
that  his  whole  energies,  and  his  entire  estate,  as  "well  as  the  full  pro- 
fessional nerve  and  pride  of  his  counsel,  will  be  exhausted  in  bringing 
his  case  fully  before  the  court.  Just  so  far  as  the  prosecution  takes  an 
interest  in  the  case — -just  so  far  as  it  believes  in  the  baselessness  of  the 
defence — is  it  liable  to  be  influenced  by  the  same  zeal.  But  there  is 
here  a  difference  between  the  position  of  the  defence  and  that  of  the 
prosecution.  The  defence  springs  its  witnesses,  if  not  its  particular 
point  of  reliance,  on  the  prosecution.  The  prosecution  has  generally 
to  reply,  as  best  it  can,  with  any  testimony  which,  at  the  moment  ancl 
spot,  it  can  catch  up. 

I  195.  But,  be  this  as  it  may,  each  party  has  certain  theories  to  be 
proved,  and  each  party  looks  around  for  experts  to  prove  such  theories. 
Now,  it  so  happens,  that  there  is  scarcely  a  single  hypothesis  as  to  re- 
sponsibility, no  matter  how  wild,  which,  among  the  large  number  of 
experts  who  have  concerned  themselves  with  this  branch  of  study,  has 
not  its  advocate.  Some  particular  hypothesis  is  a  convenient  one  for 
the  emergencies  of  the  case,  and  consequently  the  expert  who  believes 
it  is  sought  out  and  summoned.  But  he,  and  the  few,  as  it  may  be, 
who  agree  with  him,  are  summoned  alone.  The  great  mass  of  experts, 
embracing  ninety-nine  hundredths  of  the  entire  body,  are  left  uncalled. 
There  is  undoubtedly  one  good  physical  reason  for  this.  No  court- 
room, though  as  large  as  the  Roman  amphitheatre,  could  hold  all  those 
who  on  this  topic  have  fair  claims  to  be  considered  experts.  No  State 
treasury  would  attempt  the  expense  of  their  maintenance  and  remu- 
neration during  the  very  protracted  investigations  that  would  ensue. 
No  court  would  have  time  for  such  trials  ;  and,  indeed,  it  would  be  im- 
possible to  tell  how  long  such  a  suit  would  continue.  No  humane  gov- 
ernment would  permit  a  course  which,  by  thus  confining  all  the  experts 
of  the  land  (even  if  we  stopped  here)  in  one  spot,  for  an  indefinite  pe- 
riod, would  leave  their  innumerable  patients  and  wards  for  so  long  a 
time  without  guidance.     But,  independently  of  this  objection,  reason 


142       MEDICO-LEGAL   EELATIOJCS   OF   INSANITY. 

the  question  of  responsibility  will  be  discussed  here- 
after. If  it  is  not  the  province  of  the  expert  to  de- 
enough  for  a  narrow  selection  is  found  in  the  fact  that  each  party  calls 
only  the  experts  that  will  prove  his  case,  and  no  more. 

^  196.  Now,  how  has  this  practically  resulted?  We  believe  that  the 
reports  of  our  criminal  trials  show  that  there  is  not  a  case  in  which  it 
was  necessary  to  rely  on  some  extravagant  and  unique  psychological  the- 
ory to  make  out  a  defence,  in  which  such  theory  was  not  sustained  by 
experts.  Thus,  in  a  remai-kable  Kentucky  case,  hereafter  to  be  more 
fully  noticed,  it  was  testified  by  experts,  and  apparently  without  con- 
tradiction, that  all  persons  committing  suicide  are  insane,  and  that 
consequently  (a  conclusion  in  which  fortunately  the  court  did  not  co- 
incide), the  exception  of  suicide  in  life-insurance  policies  is  a  nullity. 
So  in  the  case  of  Arthur  O'Connor,  who  was  tried  in  London  in  April, 
1872,  for  an  assault  on  the  Queen,  Dr.  Tuke  testified  to  the  prisoner's 
insanity,  because  he  had  no  sense  of  his  situation,  and  because  he 
"argued  in  a  circle,"  which  facts  were  declared  by  an  opposite  medi- 
cal expert  to  prove  just  the  conti'ary,  while  Dr.  Sheppard,  Professor 
of  Psychological  Medicine  in  King's  College,  and  head  of  the  Colney 
Hatch  Asylum,  announced,  in  an  article  in  the  Lancet,  that  Dr.  Tuke's 
position  was  "monstrous."  So  also  in  Andrew's  case,  where  the  de- 
fence was  mania  travisiioria  [transitoria?),  one  physician  (a  gentle- 
man highly  respectable,  but  standing  almost  alone  in  this  respect)  was 
bi'ought  to  testify  to  the  psychological  soundness  of  the  defence ;  while 
the  prosecution  limited  itself  to  but  one  expert  in  reply,  though  it 
could  have  found  a  thousand  to  endorse  what  that  expert  said.  So  in 
the  case  now  immediately  before  us,  "  dipsomania"  is  spoken  of  as 
proved  by  medical  experts;  and  it  is  said  to  be  the  law  that  if  these 
experts  declare  that  there  is  such  a  disease  as  "  dipsomania,"  and  that 
"dipsomania"  confers  irresponsibility,  then  the  defendant  is  irrespon- 
sible. But  what  experts?  Who  are  to  declare  this?  Those  selected 
by  the  defendant  out  of  that  small  knot  of  psychological  physicians  who 
hold  to  this  theory?  And  is  the  court  to  be  bound  by  the  views  of 
those  experts,  supposing  the  prosecution  declines  to  reply,  or  replies 


EXPERTS.  143 

clare  whetlier  the  individual  is  or  is  not  insane,  for 
what  purpose  was  he  called  ?     The  accused  either  is 

imperfectly?  Is  the  judge  to  shut  his  eye  to  the  fact  that  by  almost 
all  modern  psychologists — by  all  the  governmental  forensico-legal  ex- 
perts of  Germany,  by  whom  such  great  breadth  and  ability  of  diag- 
nosis is  exhibited,  and  by  whom  such  unparalleled  patience  and  com- 
pass of  induction  exercised — by  at  least  a  preponderating  weight  of 
opinion  among  English  and  American  alienists — the  theory  of  distinct 
moral  mono-mania,  the  mind  remaining  sane,  is  not  only  repudiated  but 
denounced?  But  how  is  this  fact  to  be  shown?  The  prosecution  has 
not  the  means  or  time,  even  if  it  has  the  desire,  to  bring  these  emi- 
nent men  to  the  witness-stand.  There  is  no  process  in  other  words, 
in  which  the  true  sense  of  experts,  taking  them  as  a  body,  can  be  ob- 
tained. The  test,  therefore,  is  one  which,  from  the  inadequacy  of  our 
judicial  machinery,  we  cannot  apply. 

§  197.  But,  again,  even  supposing  experts  of  conflicting  views  could 
be  fairly  and  liberally  summoned,  so  as  to  give  the  jury  the  full  ren- 
ditions of  science  on  the  questions  in  litigation,  there  is  no  court  of 
experts,  who  can  harmonize  antagonistic  views,  and  give  to  the  jury  in 
a  concrete  shape  a  positive  and  final  judgment.  In  legal  practice,  from 
tlie  fact  that  in  each  State  there  is  a  final  court  of  appeal,  this  difliculty 
is  obviated.  "We  all  know  what  the  law  is ;  or,  if  we  do  not,  we  have 
the  means,  in  each  litigated  case,  of  ascertaining  such  law.  And  in 
this  certainty,  at  least  as  much  as  in  the  wisdom  of  the  opinions  pro- 
mulgated, lies  our  safety.  Take,  for  instance,  to  repeat  a  prior  illus- 
tration, the  question  of  moral  insanity.  If  moral  insanity  be  estab- 
lished by  the  courts,  then  the  legislature  can  take  measures  to  have  all 
persons  "morally  insane"  placed  in  insane  asylums,  so  that  no  injury 
to  the  community  can  ensue  from  their  running  at  large.  Or,  if  the 
courts  hold  that  "moral  insanity"  is  not  a  defence,  then  persons  of 
this  class  will  be  held  responsible  penally  for  their  misdoings,  or  placed 
under  bonds  to  keep  the  peace.  But  if  the  rule  is  to  be  laid  down  by 
experts  called  freshly  in  each  particular  case,  with  no  court  of  appeal, 
it  will  be  impossible  to  have  any  settled  law.     The  experts  selected  in 


144      MEDICO-LEGAL   RELATIONS   OF   INSANITY. 

or  is  not  insaue.  Assume  that  no  responsibility  at- 
tached to  the  question,  but  simply  as  a  matter  of 

one  case  will  prove  entirely  a  different  law  from  the  experts  selected  in 
another  case.  For  instance,  in  those  cases  in  which  the  State  takes 
the  prosecution  in  its  own  hands,  and  calls,  as  is  the  practice  in  some 
jurisdictions,  men  of  high  station  as  psychologists,  the  testimony  will 
be  that  there  is  no  such  thing  as  either  monomania  or  "moral  insanity" 
as  a  distinct  insane  affection.  On  the  other  hand,  in  a  case  in  which 
the  defendant's  mental  sanity  is  indisputable,  and  his  life  may  depend 
on  his  proving  that  "moral  insanity"  is  a  good  defence,  experts  who 
hold  to  "  moral  insanity"  are  called  to  prove  it  exists;  and  "  moral  in- 
sanity" is  so  far  established.  From  neither  of  these  decisions  is  thero 
any  appeal.  There  is  no  mode  of  harmonizing  them.  Nor  is  it  pos- 
sible to  tell  what  the  future  may  bring  forth,  except  that  each  party 
will  call  such  experts  as  are  most  favorable  to  his  views.  Now,  to 
speak  of  the  opinions  of  such  special  experts  as  the  opinions  of  experts 
in  general,  and  declare  it  to  constitute  the  rule  of  insanity,  is  about  as 
reasonable  as  it  would  be  to  speak  of  the  arguments  of  counsel  em- 
ployed to  argue  on  a  series  of  isolated  cases,  as  constituting  the  law  of 
the  land.  The  fact  is  there  is  no  settled  and  final  opinion  of  experts, 
to  supply  the  test  which  is  here  invoked,  because  there  is  no  final  court 
by  whom  conflicts  among  experts  can  be  reconciled  and  a  settled  law 
pronounced. 

§  198.  But,  after  all,  we  must  next  observe  that  the  proposed  submis- 
sion of  the  tests  to  experts  for  decision  is  an  illusion,  for  the  court 
will  have  to  explain  what  it  is  that  the  experts  say.  No  court  can 
abdicate  its  functions  of  weighing  testimony  and  of  declaring  what  tes- 
timony means.  It  is,  indeed,  a  fundamental  maxim  of  the  law  that 
witnesses  are  not  to  be  counted,  but  weighed.  Let  us  take,  as  illus- 
ti-ating  this  necessity,  the  celebrated  Windham  case,  elsewhere  more 
fully  noticed.  A  petition  of  lunacy  was  taken  out  against  Mr.  Wind- 
ham, his  nearest  relatives  being  the  petitioners.  His  course  was 
shown  to  have  been  since  his  boyhood — at  the  time  of  the  inquisition 
he  was  not  much  older  than  twenty-one — one  of  reckless  and  imbecile 


EXPERTS.  145 

information  it  was  desirable  that  it  should  be  deter- 
mined,  who   would    be   called   upon   to   decide   the 

profligacy  ;  and  some  of  the  most  eminent  experts,  called  for  the  peti- 
tioners, declared  that  he  was  wanting  in  capacity  to  manage  his  own-i-, 
affairs.  But  the  testimony  thus  produced  was  overborne,  as  to  num- 
bers, by  a  mass  of  other  experts,  who,  on  examination  f\xr  more  super- 
ficial, and  on  tests  far  less  thorough,  pronounced  for  the  respondent's 
competency.  Of  course,  in  such  cases,  there  was  but  one  course  open 
to  the  master  in  lunacy  by  whom  the  inquisition  was  held.  His  duty 
was  to  say  where  the  weight  of  the  testimony  was,  and  by  what  tests 
it  was  to  be  proved.  So  it  must  always  be  in  cases  of  conflict  of 
evidence.  Yet  to  declare,  supposing  the  testimony  of  experts  to  be 
"law,"  where  the  weight  of  this  testimony  lies,  is  really  to  declare 
what  the  law  itself  is. 

I  199.  Nor  can  harmony  be  by  any  other  course  adjusted  between 
civil  and  criminal  law.  In  many  classes  of  probate  cases  the  question 
of  a  testator's  sanity  is  taken  from  the  jury  and  determined  exclu- 
sively by  the  court.  In  all  civil  issues  this  is  forced  by  demurrers 
either  to  the  pleading  or  to  the  evidence.  Even  on  jury  trials,  the 
legal  relation  of  the  testimony  of  experts  can  be  removed,  by  bills  of 
exceptions,  or  by  appeal,  to  the  Superior  Court.  To  declare  that  in 
criminal  cases  such  questions  are  solely  for  the  jury,  guided  by  experts, 
would  be  to  introduce  not  merely  clashing  of  courts,  but  failure  of  jus- 
tice. A  man  would  be  sane  by  one  class  of  proceeding,  and  be  insane  by 
another.  After  being  declared  responsible  by  an  inquisition  of  lunacy, 
he  might  be  declared  irresponsible  by  a  jury  on  an  indictment  for  crime ; 
and  thus  would  he  be  too  irresponsible  to  be  punished  as  a  criminal, 
and  yet  not  irresponsible  enough  to  be  placed  in  an  insane  asylum. 
Or,  under  the  direction  of  experts  of  opposite  views,  a  man  who,  in  a 
civil  court  would  be  held  insane,  might  be  convicted  by  a  jury  as  sane, 
without  any  right,  on  the  hypothesis  here  combated,  of  appealing  to 
the  court  for  redress. 

^  199a.  But,  finally,  we  must  fall  back  on  the  position  already  fully 
argued,  that  the  question  of  irresponsibility  is  one  that  cannot,  con- 

10 


146       MEDICO-LEGAL    RELATIONS   OF   INSANITY. 

question,  experts  or  judges?  Would  the  decision  be 
considered  a  question  of  law  or  a  matter  of  fact? 
Let  it  be  remembered  that  the  expert  does  not  in  any 
case  declare  directly  as  to  his  opinion  of  responsibility. 
His  only  province  is  to  J'eclare  whether  or  not  the 


sistently  with  public  justice,  be  surrendered  by  the  courts.  Responsi- 
bility is  a  judicial  question.  It  is  of  the  highest  grade.  It  touches  the 
most  cherished  prerogatives  of  citizen  and  state.  It  involves  in  its 
criminal  relations  two  topics,  both  of  which  are  in  the  range  of  juridical 
philosophy,  and  both  of  which  should  be  decided,  in  each  case  that 
arises,  by  officers  of  the  state,  appointed  by  the  state,  bound  by  fixed 
rules,  and  advised,  before  they  decide,  liy  counsel  who  will  present  both 
sides  of  the  question  at  large.  One  of  these  topics  is  the  relation  of 
responsibility  to  reason,  and  here  arises  the  principle  heretofore  dis- 
cussed on  grounds  purely  juridical,  that  wherever  there  is  reason  there 
is  responsibility.  The  other  topic  is  that  of  the  divisibility  of  the  Ego 
into  distinct  factors,  one  of  which  can  become  insane  while  the  other 
is  sane ;  and  in  this  is  involved  the  position  hereafter  to  be  vindicated, 
that  there  is  no  such  thing  as  moral  insanity  coexistent  with  mental 
sanity.  These  points  are  not  to  be  finally  adjudicated  by  experts,  who 
are  neither  appointed  by  the  state,  so  as  to  be  independent  of  party 
choice,  nor  are  selected  from  their  general  judicial  fitness,  nor  are  bound 
by  precedent,  nor  are  advised  before  they  come  to  a  decision,  by  counsel 
presenting  fully  both  sides.  Experts  are  no  doubt  to  give  facts,  though 
their  exploration  of  facts  should  not  be  made  without  notice  to  the  op- 
posite side.  But  questions  of  high  philosophical  jurisprudence  such  as 
these,  bearing  as  they  do  most  closely  on  the  liberty  of  the  citizen  and 
the  safety  of  the  state,  should  be  decided  by  judges,  who,  appointed  by 
the  state,  independent  of  the  parties,  and  advised  by  counsel,  remem- 
ber that  their  decision  is  to  be  part  of  a  harmonious  and  equal  system 
of  public  law,  and  that  for  their  rendering  of  it  they  are  responsible 
to  the  state,  from  which  their  appointment  proceeds. 


EXPEETS.  147 

accused  is  insane.  If  the  judge  can  determine  that 
point,  why  go  through  the  farce  of  calling  experts 
at  all  ?  It  will  be  observed  that  it  is  only  because 
the  law  says  an  insane  person  is  irresponsible  for  his 
acts  that  even  indirectly  the  expert  touches  the  ques- 
tion of  responsibility.  Were  the  law  so  changed  that 
insanity  would  be  no  bar  to  responsibility,  then  the 
declaration  of  the  expert  that  the  accused  was  insane 
would  have  no  legal  significance.  Insanity  has  been 
shown  to  be  a  manifestation  of  physical  disease,  and 
whether  a  person  is  diseased  or  not  is  certainly  a  ques- 
tion of  fact  for  a  medical  expert  to  determine,  and 
the  law,  whether  the  lex  scrlpta  or  the  lex  non  seripia 
is  immaterial,  in  declaring  that  certain  responsibili- 
ties shall  or  shall  not  follow  the  absence  or  pres- 
ence of  certain  forms  of  disease,  does  not  change  the " 
relative  positions  of  the  patient  and  physician,  nor 
confer  a  right  upon  the  judge,  who  is  not  an  expert 
to  invade  the  domain  of  those  whom  the  courts, 
as  well  as  the  people,  recognize  as  medical  exj)erts ; 
therefore  the  fact  of  sanity  or  insanity  in  the  accused 
ought  to  be  determined  by  the  jury  from  the  testi- 
mony of  the  medical  experts. 

§  52.  If  it  is  considered  imperatively  necessary  that 
the  judges  should  determine  the  question  of  insanity 


148       MEDICO-LEGAL    EELATIONS    OF   INSANITY. 

by  some  "  precedent"  or  "  legal  maxim,"  so  as  legally 
to  control  responsibility,  then,  in  the  name  of  con- 
sistency, change  the  law  so  that  the  expensive  farce 
of  calling  experts  shall  be  abolished.  Expunge  the 
words  insane  and  insanity  from  the  law,  and  have  in 
their  stead  some  of  the  many  legal  tests  of  insanity 
now  in  use,  as  a  knowledge  of  "  right  and  wrong," 
"complete  or  limited  alienation,"  or  any  other  term 
that  may  be  considered  in  accordance  with  the  legal 
view  of  responsibility ;  but  while  the  question  is  "  san- 
ity or  insanity,"  let  it  be  determined  by  medical  ex- 
perts, who  alone  are  competent  judges  of  that  fact. 

It  is  not  claimed  that  there  are  no  cases  of  insanity 
which  can  be  determined  by  those  who  are  not  experts 
according  to  the  ''j)ure  rule  of  law."  The  raving 
maniac  with  no  lucid  interval,  the  drivelling  idiot,  or 
the  confirmed  melancholic  needs  no  special  knowledge 
to  determine  his  or  her  deplorable  condition ;  unfor- 
tunately for  them,  they  are  so  far  removed  from  ra- 
tionality that  any  person  of  ordinary  intelligence  could 
not  well  be  mistaken  as  to  their  condition ;  about  such 
there  is  no  dispute.  Judges,  lawyers,  doctors,  juries, 
neighbors,  and  friends,  all  agree  respecting  such  un- 
fortunates, and  when  they  are  required  to  attend 
courts  it  is  simply  j9?^o  forma.     But,  as  against  these 


EXPERTS.  149 

extreme  cases,  there  are  all  degrees  of  mental  power, 
from  the  imbecile,  who  cannot  be  taught  that  two  and 
two  make  four,  to  the  genius  of  a  Newton,  and  all 
grades  of  mental  disturbance,  from  the  raving  maniac 
to  the  person  who  is  popularly  known  as  "  a  little  off 
his  balance."  The  extremes  of  both  these  conditions 
are  easily  determined  with  certainty,  but  between 
these  there  is  a  whole  chromatic  spectrum  of  mental 
conditions,  in  which  the  tints  are  so  closely  blended 
as  to  be  almost  indistinguishable,  and  when  the  case 
is  a  mean  between  the  two  extremes — lies  close  to  the 
indistinct,  wavy  line  of  demarcation  which  divides 
sanity  from  insanity,  then  who  but  the  skilled  expert 
can  determine  to  which  class  he  belongs  ?  Nay,  even 
to  experienced  experts  such  cases  are  very  perplexing, 
especially  where  the  person  has  a  motive  for  being 
considered  insane,  as  in  the  case  of  criminals  whose 
only  defence  is  insanity,  and  the  exact  condition  in 
such  cases  can  only  be  positively  ascertained  by  hav- 
ing the  suspected  party  under  the  surveillance  of  an 
expert  continuously  for  a  sufficient  length  of  time, 
where  he  may  be  carefully  watched  when  he  supposes 
himself  alone  and  unobserved. 

§  53.  Another  pregnant  factor  in  the  uncertainty 
of  verdicts  is  the  prevailing  practice  of  presenting 


150      MEDICO-LEGAL   RELATIONS   OF   INSANITY. 

cases  hypothetically  to  the  expert.  It  is  notorious 
that  there  are  many  cases  in  which  it  is  impossible 
for  one  eminent  physician  to  report  to  another  equally 
eminent  a  case  under  his  daily  care,  so  exactly  and 
clearly,  that  the  latter  would  be  justified  in  giving  an 
opinion  as  to  treatment  without  a  personal  examina- 
tion of  the  case. 

There  is  much  to  be  learned  by  skilled  observation 
that  cannot  be  transferred  to  jDaper  with  sufiScient  ac- 
curacy to  enable  the  reader  to  form  an  opinion  as  to 
the  precise  condition ;  hence  the  universal  custom  of 
having  medical  consultations  at  the  patients'  bedsides. 
What  are  the  hypothetical  cases  presented  in  court 
from  which  an  expert  is  expected  to  decide  correctly 
as  to  the  exact  mental  condition  of  a  prisoner  ?  The 
cases  thus  presented  in  court,  even  if  honestly  pre- 
pared, consist  of  a  number  of  symptoms,  manifesta- 
tions, and  aj)pearances  that  are  believed  to  closely 
resemble  the  symptoms,  manifestations,  and  appear- 
ances exhibited  by  the  accused.  By  whom  have 
these  observations  been  made,  and  by  whom  are  the 
hypothetical  cases  prepared  ?  Even  if  by  an  experi- 
enced expert,  they  might  mislead,  because  those  things 
which  closely  resemble  are  not  identical.  But  hypo- 
thetical cases  are  not  supposed  to  be  prepared  by  ex- 


EXPERTS.  151 

perts.  Tliey  are  prepared  and  presented  by  lawyers 
who  are  not  skilled  observers,  and  generally  not  from 
extended  observation,  two  or  three  visits  of  short  du- 
ration being  the  usual  limit,  and  frequently  not  from 
personal  observation  at  all,  but  from  the  reports  of 
friends  or  attendants  who  also  are  not  skilled  observers. 
With  no  intention  to  do  injustice  to  eminent  members 
of  a  sister  profession,  we  say  that  they  have  no  quali- 
fications whatever  that  fit  them  for  preparing  a  hypo- 
thetical case  of  a  physical  disease.  They  know 
nothing  of  iDathological  conditions,  nor  are  they  quali- 
fied to  report  accurately  symptoms  or  indications  of 
disease.  This  may  probably  be  denied  by  lawyers, 
but  it  is  true  nevertheless.  Any  ordinary  observer 
could  notice  that  a  person  had  a  bad  cough  and  ex- 
pectorated freely,  but  an  ordinary  observer  could  not 
determine  whether  that  cough  and  expectoration  were 
the  result  of  irritation  of  the  fauces,  influenza,  bron- 
chitis, or  tubercular  consumption.  Diseases  so  widely 
different  in  their  origin,  location,  pathology,  and  ter- 
minations have  two  prominent  symptoms  common  to 
all  of  them.  The  ordinary  observer  notes  and  reports 
only  those  prominent  symptoms  and  appearances. 

Dr.  Luys  has  admirably  shown  the  absolute  neces- 
sity for   skilled   observation.     He   says,    "  Thus,  for 


152      MEDICO-LEGAL   RELATIONS   OF   INSANITY. 

instance,  when  I  auscultate  tlie  chest  of  a  patient,  and 
perceiving  the  existence  of  tubular  resj)iration,  declare 
that  the  patieiit  is  in  the  second  stage  of  pneumonia, 
I  give  utterance  to  a  judgihent  that  has  many  ramifi- 
cations in  my  mind,  and  is  made  up  of  a  great  number 
of  different  materials. 

"  Starting  from  this  blowing  noise  that  has  struck 
my  ear,  I  represent  to  myself  what,  under  similar 
circumstances,  I  have  perceived  on  previous  occasions. 
I  have  observed,  for  instance,  that  this  blowing  noise 
corresponds  to  a  hypersemia  of  the  pulmonary  tissue, 
with  concomitant  induration,  that  it  depends  upon 
an  induration  of  tissue,  not  upon  the  presence  of 
effused  fluid.  At  the  same  time  I  perceive  with  my 
eyes  the  general  condition  of  the  patient,  I  note  his 
countenance,  his  external  habit,  the  state  of  his  tongue, 
etc.,  and  a  new  series  of  notions  acquired  by  the  exer- 
cise of  optic  impressions,  is  awakened  in  my  mind  and 
becomes  associated  with  the  process  already  begun  by 
the  auditory  impressions.  I  percuss,  moreover ;  I  feel 
the  pulse ;  I  palpate ;  and  once  more,  starting  from 
a  new  series  of  sensorial  impressions  that  come  into 
play,  new  regions  of  the  sensorium  are  associated,  set 
in  vibration,  and  take  their  part  in  the  complex  opera- 
tion that  is  taking  place.     The  different  regions  of  my 


EXPERTS.  153 

brain  are  successively  affected.  Notions  formerly  ac- 
quired are  laid  under  contribution ;  tbey  come  forward 
of  their  own  accord  on  the  occurrence  of  the  excitation 
with  which  they  are  methodically  connected  as  con- 
temporary memories ;  and  thus  the  personality,  re- 
minded of  the  primordial  impression,  and  enlightened 
by  the  total  product  of  the  related  notions  that  spring 
up  automatically,  pronounces  its  judgment  with  a  suf- 
ficient number  of  materials,  and  expresses  the  manner 
in  which  it  is  effected  in  a  verbal  form  which  is  the 
index  of  its  present  condition.  Thus  it  is  that  in 
pronouncing  the  words  '  pneumonia — second  stage,'  I 
epitomize  a  whole  series  of  former  notions,  methodi- 
cally grouped,  which  have  made  their  appearance  in 
my  mind,  motu  proprio."^ 

No  expert  could  with  certainty  determine  from  a 
non-exjDert's  report  the  existing  disease,  because  the 
trained  eye,  ear,  and  touch  were  wanting  in  the  ob- 
server. The  subtile  symptoms  unnoticed,  or  not  un- 
derstood, by  the  common  observer,  being  just  the 
symptoms  that  enable  the  expert  to  determine  with 
certainty  the  character  of  the  disease,  while  the 
prominent  symptoms,  which  alone  were  noticed  by 

^  Luys,  Brain  and  its  Functions,  pp.  294-95. 


154      MEDICO-LEGAL   EELATiONS   OF   INSANITY. 

the  unskilled  observer,  furnish  no  clue  whatever  as  to 
the  exact  nature  of  the  malady  or  cause  which  pro- 
duced the  symptoms  or  manifestations. 

§  54.  The  above  illustration,  which  is  only  one  of  a 
score  that  might  be  used,  shows  that  unskilled  obser- 
vation would  be  necessarily  fatal  to  a  recognition  of 
common,  ordinary  diseases;  and  diseases  of  the  nervous 
system,  especially  of  the  nerve-centres,  being  generally 
much  more  obscure,  would  therefore  require  more 
special  training  to  enable  the  observer  to  note  and  in- 
terpret their  indications  correctly  than  would  be  re- 
quired in  determining  any  of  the  above-mentioned 
common  diseases.  Another  grave  objection  to  the  use 
of  hypothetical  cases  arises  from  the  fact  that  they 
are  prepared  by  lawyers,  who,  on  one  side  at  least,  are 
the  paid  agents  of  their  clients  and  therefore  inter- 
ested, and  whose  zeal  for  the  interest  of  their  clients  is 
at  least  as  prominently  manifested  as  is  their  faithful- 
ness in  representing  the  actual  facts  of  the  case  to  the 
court  and  jury.  Besides,  they  are  often  assisted  by 
skilled  observers  (who  are  not  witnesses  at  the  trial, 
and  consequently  not  under  oath)  in  the  preparation 
of  their  hypothetical  cases  for  one-sided  presentation. 
Obscure  yet  highly  important  symptoms  are  entirely 
omitted,  or,  if  noticed  at  all,  touched  so  lightly  that 


EXPERTS.  155 

attention  is  not  aroused  to  their  importance,  while 
other  symptoms  or  apj^earances  which  favor  their  side 
are  brought  into  prominent  notice — are  urged  again 
and  again  uj^on  the  attention  of  the  court  and  jury. 
The  judge  and  jury,  not  being  experts,  and  therefore 
being  unacquainted  with  the  importance  of  the  symp- 
toms lightly  touched,  or  uninformed  as  to  those 
omitted,  necessarily  arrive  at  incorrect  conclusions, 
however  correct  and  logical  their  conclusions  may  be 
as  to  the  symptoms  actually  presented  to  them. 
Again,  in  preparing  his  hypothetical  case  the  lawyer 
has  plenty  of  time  and  skilled  assistance  if  he  de- 
sires it,  so  that  he  can  adroitly  choose  his  words  and 
dexterously  combine  the  symjDtoms  and  their  se- 
quences. Not  so  the  opposite  side.  It  is  sprung  upon 
them  and  upon  the  experts,  and  both  may  fail  to  de- 
tect the  subtleties  which  tend  to,  and  often  do  mislead. 
By  such  manipulation,  wherever  the  evidence,  if  fairly 
brought  out,  would  leave  nearly  an  equipoise  between 
'pro  and  con.  the  case  may  be  turned  to  whichever  side 
exhibits  the  greater  skill  in  prej)aring  its  hypothesis; 
hence  such  cases  are  generally  decided  not  on  their 
merits,  but  on  the  adroitness  and  skill  of  the  counsel 
employed.  In  every  case  where  insanity  is  to  be  the 
defence  for  crime  perpetrated,  the  prisoner  ought  to  be 


156      MEDICO-LEGAL   EELATIONS   OF   INSANITY. 

committed  to  an  insane  asylum,  and  be  tliere  kept  until 
by  observation  and  direct  examinations  made,  tlie  med- 
ical experts  are  fully  satisfied  as  to  his  mental  condition, 
and  then  require  them  to  give  their  opinion  and  the 
reasons  for  such  opinion,  directly  to  the  court  and 
jury  in  the  form  of  a  deposition.  Were  that  method 
adopted,  at  least  one  grave  source  of  uncertainty 
would  be  obviated. 

§  b5.  It  is  unquestionably  a  fact  that  in  some 
forms  of  insanity  there  are  intervals  when  the  mind 
is  clear,  or  when  there  are  what  are  commonly  known 
as  ^^  lucid  intervals."  There  is  also  the  condition 
known  as  "  irresistible"  or  "  uncontrollable  impulse." 
It  is  not  inconsistent  with  occasional  attacks  of  "  irre- 
sistible impulse"  that  there  should  be  lucid  intervals 
of  longer  or  shorter  duration,  during  which  periods 
the  insane  individual  may  conduct  himself  with  ordi- 
nary propriety.  He  can  reason  correctly  and  forcibly 
on  subjects  with  which  he  is  familiar.  'Nay,  one  of 
the  distinctive  features  of  general  mania  is  that  the 
"  reasoning  .  .  .  does  not  so  much  fail  in  the  force 
and  logic  of  its  arguments  as  in  the  incorrectness  of 
its  assumptions."  ^   From  information  obtained  through 

^  Ray,  Med.  Juris,  of  Insanity,  I  346. 


EXPERTS.  157 

a  few  visits  made  by  unskilled  observers,  it  would  be 
impossible  to  represent  such  cases  hypotlietically  with 
that  accuracy  which  would  be  indispensably  necessary 
to  warrant  an  expert  in  giving  a  positive  opinion  as 
to  the  mental  condition  of  the  prisoner.  In  the  trial  of 
Guiteau  for  assassinating  President  Garfield,  the  utter 
worthlessness  of  "  hypothetical  cases"  was  practically 
demonstrated.  It  was  alleged,  during  the  trial,  that 
unless  extraordinary  license  were  given  to  Guiteau  to 
enable  the  experts,  then  and  there,  to  study  his  men- 
tal condition,  grave  doubts  existed  as  to  whether  the 
assassin  could  be  convicted.  We  do  not  vouch  for  the 
truth  of  the  allegation,  but  it  is  charitable  to  believe 
that  either  that  or  some  other  equally  cogent  and 
weighty  reason  induced  the  learned  judge  to  waive, 
during  the  trial,  the  usually  severe  decorum  of  a  court 
of  justice,  engaged  in  determining  the  guilt  or  inno- 
cence, sanity  or  insanity,  of  a  j)risoner  charged  with 
the  commission  of  a  crime  the  most  heinous  known  to 
the  law.  The  proceedings  during  that  memorable  trial 
were  characterized  by  the  conspicuous  absence  of  grav- 
ity, dignity,  and  order,  and  had,  to  the  eyes  of  those 
who  did  not  divine  the  intention  of  the  court,  the  ap- 
pearance of  a  burlesque  or  the  enactment  of  a  farce, 
rather  than  of  a  solemn  trial  for  the  deliberate,  uu- 


158      MEDICO-LEGAL   RELATIONS   OF   INSANITY. 

provoked  murder  of  an  innocent  person  (waiving  all 
mention  of  tlie  exalted  rank  and  responsible  official 
position  of  that  individual) .  It  is  not  creditable  to  the 
United  States  that  its  judicial  machinery  is  so  defect- 
ive that,  for  the  purpose  of  securing  justice  in  the  case 
of  the  murderer  of  its  chief  executive,  the  judge  had 
to  allow  the  prisoner  such  license  as  brought  the  court 
to  the  verge  of  contempt.  Few  trials  in  the  history 
of  civilization  have  more  loudly  proclaimed  the 
urgent  necessity  for  amending  the  law  and  judicial 
modes  of  procedure,  especially  as  the  abrogation  of 
dignity  and  decorum  does  not  in  any  way  arise  ex 
necessitate  rei.  Had  Guiteau  been  sent  to  an  insane 
asylum  for  a  sufficient  length  of  time  before  his  trial, 
to  enable  the  medical  experts  to  study  him  thor- 
oughly, at  such  times  and  under  such  circumstances 
as  in  their  ripe  experience  they  considered  the  best 
suited  to  disclose  exactly  his  mental  condition,  does 
any  sane  person  suppose  those  exj^erts  would  have 
been  less  likely  to  arrive  at  the  truth  in  that  way 
than  by  the  undignified,  disorderly,  and  irritating 
method  which  was  adopted  ?  A  crowded  court-room, 
with  the  gravest  of  personal  interests  pending,  and 
the  consequent  excitement  arising  therefrom,  does  not 
by  any  means  furnish  the  best  opportunity  for  study- 


EXPEETS.  159 

ing  the  mental  condition.  It  is  well  known  tliat 
undue  responsibility  or  excitement,  in  some  individ- 
uals, would  induce  mental  perturbations,  whicli,  if 
alone  observed,  would  mislead  as  to  the  general 
mental  state.  In  all  cases  where  there  is  doubt  as 
to  the  sanity  of  a  person  it  is  of  great  importance 
that  he  should  be  observed  under  different  circum- 
stances, and  at  different  times,  and  by  far  the  most 
important  of  these  is  when  he  supposes  himself  secure 
from  human  observation.  In  feigning  insanity  the 
mental  strain  is  so  tense  that  it  cannot  be  kept  up  in- 
definitely ;  hence,  when  the  person  supposes  himself 
entirely  unobserved,  the  mask  will  be  thrown  off  and 
he  will  appear  as  he  really  is. 

In  this  trial  there  were  two  "hypothetical  cases" 
presented,  one  each  by  the  prosecution  and  by  the 
defence.  If  these  were  sufficient,  why  were  so  many 
experts  kept  so  long  away  from  their  homes  and 
those  under  their  professional  care,  in  Washington' 
at  such  great  expense  to  the  government?  If  it 
was  necessary  that  they  should  be  kept,  so  that 
they  could  make  daily  personal  observation  of  the 
prisoner,  then  the  "hypothetical  cases"  failed  to 
represent  the  case  intelligibly  to  the  experts,  hence 
were  valueless.     One  of  the  expert  witnesses  in  giv- 


160       MEDICO-LEGAL   RELATIONS   OF   INSANITY. 

ing  his  testimony  stated  tliat  lie  had  changed  his 
opinion  since  he  had  observed  directly  the  manifes- 
tations of  Guiteau's  mental  condition.  Would  he 
have  changed  his  opinion  from  studying  the  "hypo- 
thetical cases"  presented  ?  In  no  other  way  than  by 
direct  observation  and  examination  can  imposition  be 
with  certainty  detected.  When  the  proof  of  guilt  is 
so  clear  that  no  other  plea  is  tenable,  insanity  is 
often  relied  on  by  criminals  as  their  only  defence, 
and,  either  from  previous  observation  or  under  in- 
struction, insanity  is  feigned,  and  sometimes  so 
adroitly  is  the  assumption  maintained,  that  for 
months  eminent  experts  have  been  baffled  in  de- 
tecting it,  even  when  under  their  immediate,  daily 
care  in  asylums.  Unfortunately,  the  practice  gen- 
erally followed  in  such  cases  ignores  those  who 
alone  are  capable  of  detecting  the  imposition,  and 
in  consequence  many  of  the  worst  criminals  go 
"unwhipt  of  justice."  And  to  add  to  the  uncer- 
tainty caused  by  the  lack  of  competent  witnesses, 
the  "hypothetical  case"  is  introduced,  which,  as  has 
been  shown,  is  almost  certain  to  mislead;  and  as  a 
means  of  arriving  at  facts  in  any  given  case  is  un- 
reliable and  untrustworthy. 

§  56.  The  question  is  forced  u^^on  us,  is  there  a 


EXPERTS.  161 

necessity  for  continuing  tlie  inexact,  uncertain  cir- 
cumlocution of  having  "hypothetical  cases"?  The 
desideratum  is  to  have  the  facts  of  the  case  clearly  and 
concisely  j^resented  to  the  court  and  jury,  so  that  they 
may  be  readily  and  fully  apprehended.  Why  use 
inexact,  uncertain,  cumbrous  methods  to  reach  exact 
conclusions  ?  It  is  urged  that  direct  evidence  is  not 
admissible,  because  it  would  take  the  question  of  re- 
sponsibility from  the  court  and  transfer  it  to  the  wit- 
ness. How  much  of  this  is  strictly  true?  As  shown 
before  {ante,  p.  147),  it  is  the  law  that  declares  the 
irresponsibility  of  the  insane,  not  the  expert,  who 
simply  declares  that  the  accused  is  or  is  not  insane ; 
for  were  the  law  changed  so  that  insanity  would  not 
void  responsibility,  then  the  statement  by  the  expert 
that  the  person  was  insane  would  not  at  all  affect  that 
question.  Under  any  and  all  circumstances,  if  the 
testimony  of  the  witness  is  believed  by  the  court  and 
jury,  whether  as  to  facts  or  theories,  the  witness  largely 
takes  the  responsibility  of  the  decision  of  the  case  upon 
his  shoulders,  and  of  that  responsibihty  he  cannot 
practically  be  divested;  hence  the  general  usage  of 
providing  for  the  punishment  of  the  witness  who  tes- 
tifies falsely.     Suppose  a  suit  for  alleged  malpractice 

in  setting  a  broken  thigh  to  have  occurred  during  the 

11 


162       MEDICO-LEGAL   EELATIONS   OF   INSANITY. 

late  war,  the  law  declaring  that  a  weakened,  short- 
ened, and  deformed  leg  would  exempt  the  subject 
from  serving  as  a  soldier.  The  expert  witness  in  tes- 
tifying that  the  leg  had  been  broken,  was  unskilfully 
set,  was  weakened,  shortened,  and  deformed,  would  as 
directly  testify  to  the  liability  of  the  person  so  injured 
to  be  drafted  as  would  the  expert  who  testified  to  the 
insanity  of  a  criminal  be  to  his  irresponsibility ;  be- 
cause in  the  one  case  the  law  declared  the  negation  of 
liability  to  enlistment,  and  in  the  other  the  negation 
of  responsibility,  and  in  neither  case  did  the  expert 
testify  as  to  the  liability  or  responsibility.  All  the 
sections  quoted  from  Messrs.  Yfharton  and  Stille's 
work  will  not  be  considered  seriatim,  as  that  course 
would  be  unnecessarily  tedious,  but  the  principles 
involved  will  be  freely  discussed  and  frequent  refer- 
ence made  to  them.  The  sections  referred  to,  collec- 
tively, appear  to  constitute  a  fair  apology  for  the 
uncertainty  of  verdicts,  owing  to  defective  laws  or 
modes  of  legal  procedure.  Are  our  laws  of  Medo- 
Persian  inflexibility?  Are  we,  Mongolian-like,  to 
adhere  to  an  erroneous  system  of  procedure  simply 
because  the  "  precedents"  and  "  maxims"  therefor  are 
hoary  with  age ;  when,  by  the  advancement  of  science, 
many  of  those  "precedents"  and  "maxims"  have  been 


EXPERTS.  163 

shown,  time  and  again,  to  be  scientifically  incorrect 
and  false  in  fact,  therefore  utterly  untrustworthy  ?  It 
ought  to  be  borne  in  mind  that  uncertainty  of  verdicts 
in  any  class  of  cases  through  defective  laws  or  legal 
machinery  is  necessarily  a  source  of  the  grossest 
injustice.  There  cannot  but  be  injustice  often  done 
"  where  the  conviction  or  acquittal  of  a  prisoner  is  a 
matter  of  chance  .  .  .  the  less  insane  person  some- 
times escapes,  while  the  more  "insane  person  is  some- 
times hanged."^  Why  make  courts  the  seeming 
authors  of  injustice  ?  Why  not  amend  the  laws  and 
change  the  legal  modes  of  procedure,  giving  to  the 
courts  the  necessary  authority  to  make  their  verdicts 
reasonably  certain,  and  therefore  respected  ?  Because 
the  principles  of  law  are  immutable  and  eternal,  it 
does  not  necessarily  follow  that  those  principles  have 
been  always  understood  and  correctly  applied ;  and 
when  science  furnishes  conclusive  proof  that  they 
have  been  misunderstood  or  misapplied,  then  it  is 
time  to  amend,  not  the  principles,  but  the  erroneous 
practice  based  on  a  misconception  or  misapplication 
of  those  principles.  In  §  194,  and  again  in  §  196,  we 
are  informed  that  there  are  a  number  of  legal  pro- 


Maudsley,  see  ante,  I  1. 


164      MEDICO-LEGAI^    EELATIOIv'S   OF   INSANITY. 

visions  necessary  if  any  departure  is  to  be  made  from 
the  usual  routine  of  practice;  at  least  such  would 
appear  to  be  the  inference,  as,  if  they  were  not  con- 
sidered necessary,  why  refer  to  them  ?  We  are  told 
that  there  is  no  legal  process  for  the  collection  of  ex- 
pert opinions ;  there  is  no  general  law  for  issuing  com- 
missions to  take  depositions  of  experts  residing  at  a 
distance;  experts  are  unofficial  persons,  as  we  have 
no  governmental  boards  of  experts.  Considering  the 
paramount  importance  of  criminal  jurisprudence,  if 
these  or  any  other  provisions  are  necessary  to  the 
administration  of  justice,  they  ought  to  be  promptly 
provided ;  and  as  it  is  the  interest  of  all  respectable 
parties  to  have  justice  done,  if  proper  representations 
of  the  desiderata  were  made  to  Congress  or  to  State 
Legislatures,  there  would  be  no  difficulty  in  securing 
the  necessary  legal  enactments,  as  no  party  would 
oppose  such  legislation. 

In  §  195  the  many  objections  to  experts,  so  called, 
have  their  climax  in  the  want  of  room.  "  No  court- 
room, though  as  large  as  the  Koman  Amphitheatre, 
could  hold  all  those  who  on  this  topic  have  fair  claims 
to  be  considered  experts."  In  penning  the  argumen- 
tum  ah  inconvenienti  just  referred  to,  Messrs.  Whar- 
ton and  Stille  evidently  forgot,  or  disregarded,  their 


EXPERTS.  165 

own  definition  of  expert  (see  §  275).  Had  tliey  ad- 
hered to  that  definition  the}'-  would  not  have  found  so 
many  who  have  fair  claims  to  be  considered  experts 
as  to  inconveniently  crowd  a  court-house  much 
smaller  than  the  Roman  Amphitheatre.  A  strict  en- 
forcement of  that  definition  would  remove  all  the  ob- 
jections urged  in  that  section.  In  §  196  the  question 
is  asked,  "  Is  the  judge  to  shut  his  eye  to  the  fact  that 
by  almost  all  modern  psychologists  .  .  .  the  theory 
of  distinct  moral  monomania,  the  mind  (intellect  ?)  re- 
maining sane,  is  not  only  repudiated,  but  denounced  ? 
But  how  is  this  fact  to  be  shown  ?  The  prosecution 
has  not  the  means  or  time,  even  if  it  has  the  desire,  to 
bring  these  eminent  men  to  the  witness-stand."  We 
think  the  answer  unquestionably  should  be  in  the 
affirmative.  Even  should  the  case  be  made  much 
stronger  by  supposing  the  judge  to  be  an  eminent 
psychologist  and  physician  who  had  spent  many  years 
as  superintendent  of  an  asylum  for  the  insane,  so  that 
he,  in  the  strict  use  of  the  term,  was  an  expert  in  in- 
sanity, the  answer  ought  still  to  be  in  the  affirmative. 
Whether  the  matter  in  variance  exists  between  in- 
dividuals or  between  the  State  and  individuals,  the 
judge  is  supposed  to  hold  a  strictly  impartial  position 
between  them,  and  to  apply  the  principles  of  law  to 


166      MEDICO-LEGAL   KELATIONS   OF   IISTSANITY. 

the  evidence  furnished  in  all  cases  brought  before  him 
for  adjudication.  Is  he  then  expected  or  permitted  to 
furnish  the  "  means,"  "  time,"  or  "  desire"  to  the  pros- 
ecution, so  that  the  cases  may  be  brought  in  complete 
form  before  his  court,  or  shall  he  suj)ply  their  defects 
from  his  own  knowledge?  Suppose  the  prosecution 
to  be  equally  remiss  in  presenting  the  facts,  say,  in  a 
case  for  murder, — had  no  witnesses  in  court  who  could 
testify  that  a  murder  had  been  committed  and  that 
the  prisoner  at  the  bar  had  committed  that  murder ; 
would  the  judge  be  warranted  in  directing  the  jury  to 
assume  both  that  the  murder  had  been  committed  and 
that  the  prisoner  had  committed  it,  because  he  himself 
believed,  or  even  well  knew,  such  to  be  the  fact,  when 
no  evidence  had  been  offered  in  court  in  support  of 
the  indictment?  The  want  of  "means,"  "time,"  and 
"  desire"  would  be  excellent  reasons  for  blaming  the 
prosecution  with  incapacity  or  negligence,  in  which 
culpability  the  State  might  possibly  be  included,  if  it 
had  not  furnished  the  j)rosecuting  officer  with  the 
necessary  means.  But  the  judge  would  place  himself 
in  a  dangerously  false  position  were  he  to  undertake 
to  supply  their  lack  of  evidence  from  his  own  knowl- 
edge. 

Again,  the  jury  are  sworn  to  render  "  a  true  verdict 


EXPERTS.  167 

according  to  the  evidenced  How  could  tliey  render  a 
verdict  of  guilty  against  a  prisoner  when  no  ]yrooi  of 
his  guilt  had  been  offered  ?  Still,  assuming  the  judge 
to  be  an  eminent  expert  in  insanity,  and  that  the  pros- 
ecution had  neither  the  "  means,"  "  time,"  nor  "  de- 
sire" to  place  eminent  experts  on  the  witness-stand, 
and  that  the  judge  permitted  men,  not  eminent,  to 
testify  as  experts,  men  who  in  fact,  were  not  experts, 
and  these  witnesses  testified  in  behalf  of  the  defence 
to  the  existence  of  moral,  separate  from  intellectual 
insanity,  as  a  distinct  form  of  mania,  and  that  the 
prisoner  at  the- bar  was  the  subject  of  that  form  of 
mania ;  and,  through  the  incompetence  or  negligence 
of  the  prosecution  no  rebutting  testimony  was  offered, 
would  the  judge  be  warranted  in  utterly  ignoring  all 
the  testimony  that  had  been  presented,  directing  the 
jury  to  find  for  the  prosecution,  because  he  himself 
believed  that  there  could  be  no  moral  without  intel- 
lectual insanity  ?  One  of  the  facts  to  be  determined 
by  the  jury  is  the  credibility  of  the  witnesses.  Now, 
assume  that  the  witnesses  who  gave  testimony  were 
reputable  physicians,  men  of  good  standing  for  integ- 
rity and  veracity,  but  really  unskilled  as  experts  in 
insanity,  could  the  judge  direct  the  jury  that  however 
reputable  and  trustworthy  they,  the  witnesses  were  as 


168       MEDICO-LEGAL   EELATIONS   OF   INSANITY. 

men,  yet  as  experts  their  evidence  was  false,  viewed 
from  a  scientific  stand-point,  and  therefore  utterly 
unreliable  ?  Are  not  the  conclusions  of  science,  testi- 
fied to  by  witnesses,  matters  for  consideration  and  de- 
termination by  the  jury  ?  Besides,  the  judge  had 
permitted  the  witnesses  to  testify  as  experts,  knowing 
that  they  were  not,  or  not  knowing  that  they  were, 
experts  in  insanity,  and  according  to  Messrs.  Whar- 
ton and  Stille  (§  277a),  on  the  authority  of  TuUis  vs. 
Kidd,  12  Ala.,  648,  "After  a  witness  has  been  ad- 
mitted to  testify  as  an  expert,  evidence  cannot  be 
given  to  the  jury  of  the  opinions  of  other  experts  in 
the  same  science  as  to  whether  the  witness  was  quali- 
fied to  draw  correct  conclusions  in  the  science  on 
which  he  had  been  examined,  though  such  testimony 
might  have  been  properly  offered  to  the  court  to  show 
the  competency  of  the  witness  before  he  was  admitted 
to  testify."  In  the  foregoing  illustrations  it  has  been 
assumed  that  the  judge  was  also  an  eminent  expert, 
and  that  the  witnesses  who  testified  were  not;  but 
change .  the  assumption  by  supposing  that  the  wit- 
nesses were  eminent  experts,  and  uncontradicted  by 
any  other  expert  testimony,  would  the  judge  be  justi- 
fied in  directing  the  jury  to  ignore  their  united  testi- 
mony on  his  own  supposed  superior  individual  knowl- 


EXPERTS.  169 

edge?  But  change  the  assumption  again,  and  this 
time  to  what  is  generally  the  fact  id  est,  that  the 
judge  was  not  an  expert  in  insanity.  With  what 
propriety  could  he  direct  the  jury  to  ignore  testimony 
on  the  ground  that  it  was  scientifically  incorrect, 
hence  untrustworthy,  when  in  fact  he  had  no  knowl- 
edge in  the  premises  more  correct  or  reliable  than  the 
improperly  so-called  expert  witnesses  ?  Therefore,  in 
any  view,  the  interrogatory  of  Messrs.  Wharton  and 
Stille  ought  to  be  answered  in  the  afiirmative ;  other- 
wise, why  keep  up  the  expensive  practice  of  having 
witnesses  and  juries  ?  Why  not  have  every  case  de- 
cided by  the  ipse  dixit  of  the  judge,  and  not  on  the 
testimony  of  witnesses,  but  on  his  own  knowledge? 
The  arguments  of  Messrs.  Wharton  and  Stille  are 
strong  ones  against  the  present  mode  of  conducting 
insanity  trials.  They  admit  the  many  and  grave  de- 
fects of  the  system,  but  as  a  remedy  they  appear  to  ad- 
vise the  judges  to  assume  a  dangerous  authority  and 
unwarranted  responsibility  utterly  inconsistent  with 
the  genius  of  our  free  institutions.  That  grave  defects 
exist  few  will  deny,  but  are  they  necessarily  irremedi- 
able, or  remediable  only  by  adopting  other  modes  of 
procedure,  perhaps  not  less  objectionable?  We  think 
not.    When  expert  testimony  is  required,  let  it  be  given 


170      MEDICO-LEGAL   EELATIONS   OF   I:N^SANITY. 

only  by  experts.  Let  the  judges  imperatively  enforce 
the  rule  that  in  insanity  cases  none  but  those  emi- 
nent for  their  ability,  knowledge,  and  experience  in 
their  specialty  be  permitted  to  testify  as  experts,  and 
give  such  experts  full  opportunity  for  informing  them- 
selves of  the  actual  condition  of  the  alleged  insane  per- 
son, and  then  require  them  to  depose  directly  to  the 
court  and  jury  as  to  his  sanity  or  insanity,  and  their 
leasons  for  such  opinion. 

§  57.  This,  of  course,  would  bring  prominently 
forward  the  question  of  the  propriety  or  safety  to  the 
public  of  intrusting  private  persons — id  est,  persons  not 
oflficers  of  the  State — with  so  grave  a  responsibility. 
While,  as  has  been  shown,  theoretically  the  law,  not 
the  expert,  fixes  the  responsibility,  yet,  since  the  law 
says  that  the  insane  are  irresponsible,  the  determining 
of  the  fact  of  sanity  or  insanity  practically  may  be 
said  to  fix  the  responsibility,  and  we  think  it  would  be 
unwise  to  intrust  such  responsibility  to  any  person, 
however  well  qualified,  who  is  not  directly  accounta- 
ble to  the  State  as  its  ofiicer;  and  therefore  we  would 
consider  it  advisable  not  only  that  none  but  experts 
be  allowed  to  testify  as  such,  but,  further,  that  none 
but  eminent  experts,  who  are  also  ofiicers  of  the  State, 
be  eligible  to  be  called  upon  to  give  expert  testimony 


EXPERTS.  171 

in  insanity  trials,  and  we  can  generally  have  in  the 
medical  superintendents  and  their  first  assistants  of 
insane  asylums,  just  such  experts  as  are  required. 

§  58.  But  where  so  grave  a  responsibility  is  im- 
posed upon  any  particular  class  of  officers,  it  is  not 
enough  that  they  are  generally  competent  and  trust- 
worthy ;  they  ought  always  to  be  so ;  and  to  secure 
that  desideratum  we  make  the  following  suggestions : 

(a)  Let  every  State  appoint  a  board  of  examiners, 
to  be  composed  of  one  or  more  eminent  lawyers,  phy- 
sicians, and  psychologists,  and  hereafter  require  every 
j)erson,  before  he  can  be  appointed  to  hold  the  office 
of  medical  superintendent  or  first  assistant  superin- 
tendent of  any  State  asylum  for  the  insane,  to  furnish 
satisfactory  evidence  of  being  a  graduate  of  some 
reputable  medical  college,  and  to  produce  a  certificate 
of  having  passed  an  examination  before  that  board, 
and  that  he  is  well  skilled  in  each  of  the  three  depart- 
ments of  science, — "  law,  sufficient  to  determine  what 
is  the  responsibility  which  is  to  be  the  object  of  the 
contested  capacity ;  medicine,  and  psychology,  so  as 
to  speak  analytically  of  the  properties"  (or  attributes) 
"  of  the  human  mind," — and  that  medical  superin- 
tendents and  their  first  assistants,  qualified  as  above 
required,  and  who  have  been  in  the  active  discharge 


172       MEDICO-LEGAL   EELATIOJSTS    OF    INSA^NTITY. 

of  their  duties  as  such  superintendents  or  assistant  su- 
perintendents in  State  insane  asylums  for  years, 
shall  be  the  only  persons  hereafter  eligible  to  give 
evidence  as  experts  in  insanity  before  any  State  court. 

(b)  I^et  a  similar  board  be  appointed  by  the  United 
States,  or  let  the  general  government  accept  the  State 
experts  as  the  onl'i/  experts  who  will  be  permitted  to 
give  evidence  in  insanity  trials  in  the  United  States 
courts,  or  vice  versa. 

(c)  Let  it  be  a  part  of  the  official  duty  of  such 
medical  superintendents  and  their  first  assistants  to 
give  testimony  as  experts  whenever  so  required  by 
competent  authority,  receiving  no  remuneration  for 
'preparing  depositions  or  attending  court  to  give  evi- 
dence as  experts.  (Let  it  be  made  a  misdemeanor  for 
such  officers  to  receive  any  compensation,  directly  or 
indirectly,  for  service  as  experts.) 

{d)  As  an  expert  can  only  be  called  when  the 
premises  upon  which  he  founds  his  conclusions  cannot 
be  understood  by  the  court  or  jury  without  study  or 
knowledge  on  that  special  subject,  or  to  inform  the 
court  and  jury  on  a  subject  which  can  only  be  under- 
stood by  special  study,  the  expert  should  be  consid- 
ered amicus  curice,  and  as  such  should  be  subpoenaed 
not    "on    behalf    of    the    prosecution"     or  "of  the 


EXPERTS.  173 

defence,"  but  on  behalf  of  the  court,  regardless  as  to 
which  of  the  parties  to  the  trial  desired  his  services. 

(e)  Let  the  several  States,  interchangeably  with 
each  other  and  with  the  general  government,  make 
arrangements  for  the  remuneration  to  the  State  for 
the  services  of  such  experts,  when  used  otherwise  or 
elsewhere  than  by  the  State  of  which  they  are  officers. 
And  until  the  necessary  legislation  shall  have  given 
effect  to  the  foregoing  provisions,  let  the  courts  im- 
peratively require  of  all  persons  giving  testimony  as 
experts  in  insanity  trials  that  they  be,  or  have  been, 
medical  superintendents  or  first  assistant  medical  su- 
perintendents of  insane  asylums,  and  that  they  have 
held  such  positions  respectively  for  a  period  of  not 
less  than  five  consecutive  years,  as  those,  and  those 
only,  who  have  had  such  experience  can  be  properly 
considered  experts  in  insanity. 

(/)  Let  there  be  established,  near  to,  but  separate 
from,  some  State  insane  asylum,  an  insane  prison,  to 
which  shall  be  committed  (1)  all  who  are  known  to 
be  dangerous  lunatics ;  (2)  all  who  have  been  relieved 
by  competent  courts  from  responsibility  for  crimes 
committed  by  being  declared  insane.  (3)  Let  it  be 
required  of  all  persons  accused  of  crime,  who  may 
hereafter  interpose  the  defence  of  insanity,  that  they 


174       MEDICO-LEGAL    EELATIONS   OF    INSANITY. 

shall,  at  the  option  of  the  prosecuting  officer,  be  com- 
mitted to  the  insane  prison  pending  the  trial,  or 
for  such  time  as  shall  be  deemed  necessary  for  the 
satisfactory  examination  of  their  mental  condition  by 
the  experts  in  charge  thereof.  Persons  in  classes 
"  1"  and  "  2"  to  be  committed  to  the  insane  j)rison  for 
the  term  of  tlieir  natural  lives,  and  to  be  released 
only  by  the  clemency  of  the  governor  of  the  State, 
he  acting  on  a  certificate  from  a  commission  to  be 
composed  of  the  superintendent  of  the  insane  prison, 
and  of  the  superintendents  of  two  State  insane  asy- 
lums, which  certificate  shall  certify  that  the  insane 
person  has  been  cured  of  his  malady  and  may  be  set 
at  liberty  without  danger  to  the  community;  and  any 
persons  so  in  confinement  shall  have  the  right  at  any 
time,  but  not  oftener  than  once  in  six  months,  to 
demand  an  examination  by  such  commission  in  re- 
spect to  their  mental  condition,  and  a  notification 
to  the  superintendent  of  the  insane  prison  of  their 
desire  shall  be  deemed  a  sufficient  demand.  All  per- 
sons belonging  to  class  "  3"  to  be  committed  by  the 
magistrate  or  police  justice  to  the  insane  prison,  there 
to  remain  for  such  time  as  may  be  reasonably  neces- 
sary to  enable  the  superintendents  of  said  prison  and 
of  the   contiguous   insane   asylum   to   satisfy  them- 


EXPERTS.  175 

selves  as  to  the  mental  condition  of  the  prisoner,  and 
when  so  satisfied,  the  said  superintendents  shall  de- 
pose directly  to  the  prisoner's  sanity  or  insanity  to 
the  court  having  jurisdiction,  they  giving  the  reasons 
for  the  conclusion  or  opinion  at  which  they  have 
arrived,  which  depositions  shall  form  a  part  of  the 
record,  and  on  which,  the  said  superintendents  shall 
be  liable  to  examination  and  cross-examination  at 
the  instance  of  either  the  prosecution  or  defence,  and 
the  question  of  sanity  shall  be  determined  by  the 
court  before  proceeding  to  try  the  question  of  guilt. 

Were  the  foregoing,  or  some  such  provisions  ren- 
dered operative,  both  prosecution  and  defence  could 
always  alike  command  the  services  of  thoroughly 
qualified,  responsible  experts,  and  none  other,  and  the 
experts,  having  ample  opportunity  for  the  most 
careful  examination,  could  speak  positively  of  the 
mental  condition  of  the  prisoner ;  and  the  accumu- 
lated depositions  would,  in  process  of  time,  furnish 
experts'  opinions  on  every  phase  of  insanity,  which 
would  greatly  conduce  to  the  uniformity  and  cer- 
tainty of  verdicts  in  insanity  trials.  The  deside- 
ratum, par  excellence,  is  certainty,  uniformity,  and 
justice  of  verdicts,  but  in  addition  to  the  major 
benefit  a  number  of  minor  ones  would  follow  as  neces- 


376      MEDICO-LEGAL   EELATIONS    OF    INSANITY. 

sary  sequences:  (1)  The  experts  being  required 
to  give  their  services,  free  of  charge,  ahke  to  the 
State  and  to  defendants,  a  large  item  of  expense 
would  be  obviated,  and  the  rich,  in  that  important 
particular,  would  have  no  advantage  over  the  poor, 
and  the  disgraceful  scenes  too  often  enacted  would 
be  ]3revented — that  of  having  an  array  of  doctors 
on  each  side  of  a  case,  conducting  themselves,  while 
giving  testimony  under  the  sanctity  of  an  oath,  as 
if  they  were  counsel  for  the  j)arties,  instead  of  wit- 
nesses, each  side  trying  to  aid  those  by  whom  they 
were  subpoenaed  and  paid,  often,  ap23arently,  regard- 
less alike  of  scientific  truths,  and  good  conscience. 
(2)  The  time  occupied  in  trials  would  be  materially 
shortened,  as  the  long  array  of  so-called  expert  wit- 
nesses, testifying  to  any  number  of  absurdities  and 
vague  speculative  theories,  or  rather  hypotheses, 
would  give  place  to  two  or  three  experts  who,  on 
behalf  of  the  court,  would  give  positive  and  trust- 
worthy testimony  in  the  premises,  obviating  the  great 
length  of  time  now  usually  occuj)ied  in  cross-examin- 
ing the  so-called  experts,  with  the  view  of  exposing 
their  lack  of  knowledge  and  breaking  down  their  evi- 
dence. The  cross-examination  of  the  two  or  three 
experts  would  generally  be  of  short  duration,  as  few 


EXPERTS.  177 

lawyers  would  expect  to  render  nugatory  the  testimony 
of  those  thoroughly  skilled  in  their  specialty.  (3)  The 
experts  would  not  be  subject  to  the  local  bias  which  is 
so  often  an  influence  highly  prejudicial  to  the  ends  of 
justice.  (4)  The  duties  of  medical  superintendents 
of  State  insane  asylums  are  now  of  great  responsi- 
bility, for  the  proper  discharge  of  which  they  are 
directly  accountable  to  the  State,  and  if  giving  testi- 
mony as  experts  were  made  a  part  of  their  ofiicial 
functions,  they  would  reasonably  be  expected  to  be  as 
careful  and  conscientious  in  the  discharge  of  the  most 
public  part  of  their  duty, — that  part  which  would  pro- 
voke the  most  criticism,  as  they  would  of  any  other 
obligation  pertaining  to  their  ofiicial  position,  and, 
their  official  standing  being  dependent  upon  the  sat- 
isfactory performance  of  their  duties  would  be  a  suf- 
ficient guarantee  of  their  faithfulness  and  probity, 
especially  as,  being  witnesses  for  the  court,  unpaid  by 
either  party,  there  would  be  no  inducement  to  favor 
either  prosecution  or  defence. 

In  determining  the  sanity  of  testators,  when  that  is 
called  in  question  before  the  courts,  the  same  prin- 
ciples may  be  applied  as  in  criminal  trials,  but  not 
with  equal  certainty,  unless,  indeed,  an  ante-mortem 
examination  of  the  testator,  at  the  time  the  will  was 

12 


178       MEDICO-LEGAL   RELATIONS   OF   INSANITY. 

executed,  was  made  by.  experts.  When  such  examina- 
tion has  not  been  made,  experts  may  be  used  by  the 
courts  in  the  character  of  interpreters.  A  witness 
unacquainted  with  our  language  uses  words  and  sym- 
bols that  are  not  understood,  hence  the  necessity  for 
the  employment  of  an  interpreter,  who  shall  inform 
the  court  and  jury  what  the  foreigner's  words  and 
symbols  mean ;  so,  in  like  manner,  assuming  the  tes- 
tator's words  and  actions  to  have  been  somewhat  inco- 
herent and  irrational,  if  these  symptoms  of  mental 
disorder  are  not  understood,  there  arises  a  similar 
necessity  for  the  employment  of  experts  who  shall 
interpret,  for  the  information  of  the  court  and  jury, 
the  meaning  of  the  symptoms  as  testified  to,  and 
explain  what  relation  these  manifestations  of  mental 
perturbations  have  to  intellectual  disorder  or  insanity. 
§  59.  Another  objection  strongly  urged  by  Messrs. 
"Wharton  and  Stille  is  the  want  of  any  ultimate  court 
where  the  opinions  of  medical  experts  can  be  harmo- 
nized, "  There  is  no  process  ...  in  which  the  true 
sense  of  experts,  taking  them  as  a  body,  can  be  ob- 
tained. The  test,  therefore,  is  one  which,  from  the 
inadequacy  of  our  judicial  machinery,  we  cannot 
apply."  §  196.  If  this  is  all  true,  we  again  ask,  why 
not  change  the  "judicial  machinery"  ?     Is  the  ojDpro- 


EXPERTS.  179 

brium  attaching  to  insanity  trials  to  go  on  increas- 
ingly forever,  because,  to  prevent  it,  some  change  in 
our  "judicial  machinery"  is  found  to  be  necessary? 
When  the  teaching  or  practice  of  any  science  is  found 
to  be  defective  by  or  through  the  advancement  of 
knowledge,  it  ought  to  be  changed,  and  it  is  only  a 
question  of  time  when  it  will  be  changed,  and  defec- 
tive modes  or  "judicial  machinery"  are  not  excepted 
from  the  operation  of  that  general  law.  It  will  be 
found,  however,  that  there  is  a  process  by  which  the 
opinions  of  true  experts,  taking  them  as  a  body,  can 
be,  and  have  been,  harmonized.^ 

§  60.  At  present,  however,  we  shall  consider  the 
harmony  of  tests  and  rulings  that  obtain  in  the  courts. 
And  here  we  desire  to  state,  distinctly,  that  in  animad- 
verting on  the  rulings  of  courts  we  disavow  any  disre- 
spect to  the  individual  or  to  the  office ;  it  is  the  system, 
not  the  individual  or  the  office,  which  we  censure.  As 
has  been  shown,  insanity  is  a  symptom  or  result  of 
physical  disease.  How,  then,  can  a  judge  give  a  legial 
test  for  the  symptom  or  result  of  a  physical  disease  ? 
It  is  absurd  to  attempt  it,  and  the  absurdity  is  conclu- 
sively proved  in  practice  by  the  contradictory  rulings 

1  Vide  post,  U  68,  69,  70. 


180      MEDICO-LEGAL   EELATIONS   OF   IN^SANITY. 

and  tests  promulgated  by  the  various  courts.  How 
could  it  be  otherwise  ?  There  cannot  be  two  criteria 
of  insanity,  a  legal  and  a  medical,  the  one  contradic- 
tory of  the  other,  and  both  be  correct.  That  which 
is  false  in  science,  cannot  be  true  in  law ;  and  that 
•cannot  be  health  in  law,  which  is  disease  in  fact. 
When  the  law  says  that  for  an  insane  act  the  perpe- 
trator is  irresponsible,  and  the  court  announces  to  the 
jury  as  the  true  test  of  the  insanity  of  the  individual, 
a  test  or  criterion  which  the  expert  on  oath  testifies  is 
not  a  true  test  or  criterion — a  test  which  is  scientifi- 
cally false,  and  offers  another  test  or  criterion  which 
the  court  directs  the  jury  to  ignore ;  obviously  either 
the  court  or  the  expert  is  in  error,  for  both  cannot 
be  right.  It  has  been  well  remarked  by  Dr.  Elwell,^ 
himself  both  lawyer  and  doctor,  in  his  excellent  work, 
that  it  is  exceedingly  difiicult,  if  not  impossible,  for  a 
member  of  one  profession  to  comj)rehend  clearly  the 
necessities  or  modes  of  thought  of  another  profession 
upon  any  subject  which  may  be  viewed  from  the 
stand-point  of  either  profession;  and  in  offering  the 
different  and  contradictory  rulings  of  the  courts  as 
proof  of  the  great  want  of  uniformity  or  harmony 

^  Elwell,  Miilpractice,  Medical  Evidence,  and  Insanity,  pp.  370,  371. 


EXPERTS.  181 

existing  among  tliem  as  to  the  criteria  of  insanity, 
possibly  injustice  may  be  unintentionally  done  them, 
in  considering  the  proceedings  from  the  medical  in- 
stead of  from  the  legal  point  of  observation;  some 
of  the  rulings  were  probably  based  upon  a  particular 
class  of  facts,  and  were  not  intended  to  be  applied  to 
cases  in  general ;  but,  after  making  all  due  allowance 
for  such,  there  remain  sufficient,  where  the  broad  gen- 
eral principles  are  laid  down,  and  which  are  directly 
contradictory,  one  of  the  other,  showing  that  a  deplor- 
able want  of  uniformity  exists;  and  some  of  the  judges 
have  taken  trouble  to  make  those  contradictory  opin- 
ions conspicuous.  When  Ladd,^  J.,  in  referring  to 
the  opinion  of  the  English  judges  in  conference  as- 
sembled, remarks,  "  It  is  probable  that  no  ingenious 
student  of  the  law  ever  read  it  for  the  first  time  with- 
out being  shocked  by  its  exquisite  inhumanity.  It 
practically  holds  a  man  confessed  to  be  insane,  ac- 
countable for  the  exercise  of  the  same  reason,  judg- 
ment, and  controlling  mental  power  that  is  required 
in  perfect  mental  health.  It  is  in  effect  saying  to 
the  jury  the  prisoner  was  mad  when  he  committed 
the  act,  but  he  did  not  use  sufficient  reason  in  his 

^  State  V.  Jones,  N.  H.,  p.  388. 


182      MEDICO-LEGAL   RELATIONS   OF    IXSAJv'ITY. 

madness."  The  learned  judge  certainly  does  not  en- 
dorse tlie  opinion  of  the  English  judges,  which  will 
hardly  be  claimed  to  be  based  upon  a  particular  class 
of  facts;  and,  animadverting  more  pointedly,  he, 
with  a  sarcasm  worthy  of  Junius,  continues :  "  It  may 
he.  that  mental  disease  sometimes  takes  a  shape  to 
meet  the  provisions  of  this  ingenious  formula;  or,  if 
no  such  case  has  ever  yet  existed,  it  is  doubtless  within 
the  scope  of  Omnipotent  power  hereafter  to  strike  with 
disease  some  human  mind  in  such  a  peculiar  manner 
that  the  conditions  will  be  fulfilled ;  and  when  that  is 
done,  when  it  is  certainly  known  that  such  a  case  has 
arisen,  the  rule  may  be  applied  without  punishing  a 
man  for  disease.  That  is,  when  we  can  certainly  know 
that  although  the  false  belief  on  which  the  prisoner 
acted  was  the  product  of  mental  disease,  still  that  the 
.  .  .  motive  to  the  act  did  certainly  take  its  rise  in  some 
portion  of  the  mind  that  was  yet  in  perfect  health,  the 
rule  may  be  applied  without  any  apparent  wrong. 
But  it  is  a  rule  which  can  safely  be  applied  in  prac- 
tice that  we  are  seeking ;  and  to  say  that  an  act  which 
grows  wholly  out  of  an  insane  belief  that  some  great 
wrong  has  been  inflicted  is  at  the  same  time  produced 
by  a  spirit  of  revenge  springing  from  some  portion  or 
corner  of  the  mind  that  has  not  been  reached  by  the 


EXPERTS.  183 

disease,  is  laying  down  a  pathological  and  psychologi- 
cal fact  which  no  human  intelligence  can  ever  know  to 
be  true,  and  which,  if  it  were  true,  would  not  be  laWy 
but  pure  matter  oi  fact.  No  such  distinction  ever  can 
or  ever  will  be  drawn  into  practice ;  and  the  absurdity 
as  well  as  the  inhumanity  of  the  rule,  seems  to  me 
suflQciently  apparent  without  further  comment."  We 
think  further  quotations  of  courts  vs.  courts  unneces- 
sary here,  as  a  reference  to  the  few  opinions  reported 
in  the  Appendix  will  show  that  there  is  scarcely  a  con- 
ceivable view  of  the  jurisprudence  of  insanity  that  has 
not  been  authoritatively  affirmed  and  authoritatively 
denied  from  the  bench,  so  that  to  speak  of  uniformity 
or  harmony  of  opinion  existing  among  courts  on  the 
subject  has  at  least,  the  appearance  of  sarcasm ;  and 
yet,  after  quoting  many  more  contradictory  opinions 
of  courts  than  are  to  be  found  in  this  work,  Messrs. 
Wharton  &  Stille  strenuously  argue  against  allowing 
experts  to  testify  directly  to  the  sanity  or  insanity 
of  prisoners,  on  the  ground  of  want  of  uniformity 
or  harmony  among  experts,  and  gravely  assert  that 
"in  legal  practice,  from  the  fact  that  in  each  State 
there  is  a  final  court  of  appeal,  this  difficulty"  (want 
of  harmony  in  the  rulings  of  courts)  "  is  obviated. 
We  all  know  what  the  law  is ;  or,  if  we  do  not,  we 


184      MEDICO-LEGAL   EELATIOXS   OF   INSANITY. 

have  the  means,  in  each  Htigated  case,  of  ascertaining 
such  law."^  From  the  cases  reported  it  will  be  seen 
that  "  the  dijBficulty  is"  not  "  obviated,"  and  while  we 
may  all  know  what  the  law  is  at  prese7it,  we  are  not 
certain  of  what  it  will  be  a  year  hence.  When  the 
Supreme  Court  of  a  State  has  declared  what  the  law 
is,  we  know  what  it  is  in  that  State,  at  that  tiine,  but 
from  that  ruling,  we  do  not  know  what  the  law  is  in 
any  other  State,  nor  what  it  will  be  should  there  be  a 
change  in  the  personnel  of  the  court  by  death  or  vol- 
untary retirement  of  some  of  its  members.  Sometimes 
the  change  of  a  single  member  would  be  sufficient  to 
alter  the  law,  as  it  frequently  happens  that  the  court 
is  almost  equally  divided,  as,  for  instance,  in  a  recent 
case  in  the  Supreme  Court  of  the  United  States  at 
Washington,  if  for  any  cause  one  of  the  judges  had 
retired  from  the  bench,  who  can  tell  whether  Mr. 
Hayes  or  Mr.  Tilden  would  have  been  President  from 
1876  to  1880?  So,  when  the  personnel  of  a  State  Su- 
preme Court  has  been  changed,  who  can  tell  whether 
the  dictum  of  the  English  judges  or  that  of  Judge 
Ladd  would  be  affirmed?  Would  "uncontrollable 
impulse"  or  "  moral  insanity"  be  affirmed  or  denied 

^  AVharton  and  Stille,  Med.  Juris.,  I  197. 


EXPERTS.  185 

as  relieving  from  responsibility  ?  Would  the  defence 
have  to  make  the  insanity  clear  beyond  a  reasonable 
doubt,  or  would  the  prosecution  have  to  prove  sanity 
after  a  presumption  of  insanity  was  raised  ?  Would 
it  be  held  that  as  an  insane  person  cannot  commit 
a  crime,  if  the  jury  had  any  doubt  of  the  prisoner's 
sanity  they  could  not  convict,  as  they  were  not  certain 
that  a  sane  man  committed  the  act;  or,  would  the 
"  wild  beast"  theory  of  Judge  Tracey  be  affirmed  ? 
It  would  appear,  at  least,  to  persons  outside  the  legal 
profession,  that  if  there  :s  a  mode  of  harmonizing  the 
rulings  of  courts  on  insanity,  those  whose  duty  it 
was  to  have  enforced  that  mode,  have  sadly  neglected 
their  duty. 

§  61.  If,  as  is  claimed  for  it;  the  ^^ physical  media 
theory'''  has  been  establislieil,  it  necessarily  follows 
that,  insanity  being  2')roduced  by,  and  being  a  symp- 
tom of,  physical  disease  or  disorder,  there  can  be  no 
legal  test  that  will  meet  the  requirements  of  the  thou- 
sand and  one  forms  and  symptoms  of  the  diseases 
"that  flesh  is  heir  to;"  therefore  to  expect  a  legal  defi- 
nition from  the  courts  which  will  meet  the  exigencies 
of  every  case  would  be  to  expect  from  the  courts  an. 
impossibility.  Had  it  been  possible,  the  presumption 
amounts  almost  to  a  certainty,  that  the  many  judges 


186      MEDICO-LEGAL   EELATIONS   OF   IJiTSAlSriTY. 

and  psychologists,  so  eminent  and  so  profoundly 
learned  in  tlieir  respective  departments,  that  their 
knowledge  has  enriched  and  adorned  humanity  for 
all  time,  would  have  made  the  discovery  so  much 
needed,  and  which  they  so  much  desired  to  make,  as 
has  been  evinced  by  the  almost  numberless  tests  and 
definitions  which  they  have  from  time  to  time  fur- 
nished ;  not  one  of  which,  however,  will  bear  the  test 
of  universal  practical  application.  Those  lolio  hnow 
most  of  any  subject  are  the  best  able  to  define  it. 
Who  know  most  of  insanity,  the  legal  profession  or 
medical  experts  ?  Are  lawyers  or  judges  examined  as 
expert  witnesses  in  insanity  trials?  The  legal  pro- 
fession concede  their  lack  of  skilled  knowledge  by 
requiring  medical  experts  to  testify,  so  as  to  inform 
the  court  and  jury  on  a  subject  which  can  only  be 
understood  by  a  course  of  special  study ;  as  by  such 
a  course  only  can  any  j)erson  have  the  necessary 
knowledge  to  make  a  diagnosis  of  the  case,  and  a 
proper  diagnosis  of  the  case  is,  in  other  words,  pro- 
nouncing whether  the  person  is  sane  or  insane,  and 
the  reverse  is  quite  as  true,  that  he  who  presumes  to 
determine  the  question  of  sanity  or  insanity  presumes 
to  diagnose  the  disease  on  which  the  insanity  depends ; 
and  in  this  connection  it  would  make  no  difference 


EXPERTS.  187 

whether  the  disease  were  considered  mental  or  physi- 
cal. Have  members  of  the  legal  profession  the  special 
knowledge  which  would  warrant  them  to  make  a  di- 
agnosis of  either  mental  or  physical  disease  ?  If  not, 
let  those  who  have  the  necessary  knowledge  determine 
it,  and  if  the  medical  experts  are  considered  incompe- 
tent to  perform  that  part  of  their  duty,  then,  in  the 
name  of  reason  and  common  sense,  relieve  them  from 
the  responsibility  of  treating  and  taking  care  of  luna- 
tics; as,  on  the  correctness  of  the  diagnosis  must 
depend  the  approj^riateness  of  the  treatment;  hence 
those  who  cannot  be  depended  upon  to  correctly  de- 
termine the  nature  of,  ought  not  to  be  permitted  to 
treat,  insanity  or  any  other  disease ;  and,  in  the  name 
of  humanity,  relieve  the  doubly  unfortunate  insane 
from  the  care  and  supervision  of  those  who  are 
incompetent. 

§  62.  In  America  and  Britain  there  are  few  inter- 
ests more  jealously  guarded  and  few  rights  held  more 
sacred  than  the  liberty  of  the  citizen,  and  yet  in  al- 
most every  State  of  the  Union  there  are  hundreds  of 
persons  forcibly  deprived  of  their  liberty  and  held  in 
durance  in  insane  asylums.  These  persons  are  re- 
ceived in  asylums  generally  at  the-  request  of  their 
next  of  kin,  and  on  the  certificates  of  two  or  more 


188      MEDICO-LEGAL   RELATIONS   OF   INSANITY. 

physicians  that  they  are  insane.  The  ablest  experts, 
the  medical  superintendents  of  the  asylums,  also  pro- 
nounce them  insane,  many  of  them  dangerously  so, 
hut  tried  by  the  ordinary  legal  tests  many  of  them 
would  be  pronounced  not  insane.  To  improperly 
deprive  a  citizen  of  his  liberty  is  a  grave  offence 
which  the  law  is  usually  very  prompt  to  j^unish. 
Now,  if  the  legal  tests  of  insanity  are  believed  to  be 
true  and  reliable  by  courts  and  lawyers,  why  is  the 
law  not  invoked  in  behalf  of  the  thousands  improp- 
erly held  in  confinement  in  asylums,  who  would 
without  doubt  be  declared  not  insane  if  tried  by 
the  "  right  and  wrong"  test  as  ordinarily  apphed  in 
criminal  cases  ?  If  these  unfortunates  are  improp- 
erly deprived  of  liberty,  as  they  must  be  if  the  legal 
tests  are  true  (as  the  only  question  to  be  primarily 
decided  is,  what  is  the  jDerson's  mental  condition,  is 
he  sane  or  insane?),  then  why  not  ajDply  those  legal 
tests  to  their  sad  condition,  and  restore  them  at  once 
to  the  sweets  of  liberty,  home,  and  their  families  ?  If 
these  "  tests"  of  insanity  were  so  used,  it  would  be  ex- 
tremely hazardous  for  any  person  to  send  his  friend, 
however  dangerous  to  the  community  he  might  be,  to 
an  asylum,  unless  he  were  a  raving  maniac  with  no 
lucid  intervals ;  and  no  person  would  take  the  position 


EXPERTS.  189 

of  sujDerintendent  of  an  insane  asylum,  unless,  indeed, 
he  himself  was  insane,  as  verdict  after  verdict  might 
be  obtained  against  such  officer  for  false  imprisonment 
were  the  "knowledge"  test  of  Justice  Tracy,  or  the 
"right  and  wrong"  test  commonly  used  in  criminal 
cases,  made  the  criterion  of  such  trials.  The  law  says 
an  insane  person  may  be  sent  to,  and  confined  in,  an 
insane  asylum ;  hence,  if  the  person  is  insane,  no  ac- 
tion would  lie  for  false  imprisonment  for  his  detention 
there ;  the  law  also  says  that  an  insane  person  cannot 
commit  a  crime,  that  he  is  irresponsible  for  his  acts ; 
therefore,  to  determine  respectively  the  questions  of 
"  false  imprisonment"  and  "  responsibility,"  the  one 
thing  necessary  in  both  cases  is  to  decide  whether  or 
not  the  person  was  insane.  Per  contra,  were  the 
rulings  of  Hallock,  B.,  and  Crawford,  J.,  to  be 
authoritatively  invoked  in  such  cases  as  have  been 
the  subject  of  discussion,  it  would  be  almost  impos- 
sible for  a  person  to  obtain  damages,  however  wrong- 
fully he  might  have  been  sent  to,  and  kept  in,  an 
insane  asylum,  as  all  doubts,  by  their  rulings,  sus- 
tain the  plea  of  insanity ;  and  probably  few  sane 
persons  forcibly  taken  to  an  asylum  and  kept  there, 
suffering  under  the  immediate  smart  of  so  gross  an 
outrage,  would  conduct  themselves  with  that  calm- 


190       MEDICO-LEGAL    KELATIONS    OF   INSANITY. 

ness  and  temperance  which  would  leave  no  doubt  of 
tlieh^  sanity  in  the  minds  of  the  witnesses  who  saw 
them  forcibly  deprived  of  their  liberty. 

§  63.  Again  the  question  arises,  if  in  civil  cases 
the  question  of  sanity  or  insanity  is  a  question  of  fact 
to  be  testified  to  by  the  expert  witnesses  and  submitted 
to  the  court  and  jury,  how  can  it  be  a  question  of 
law  to  be  decided  by  the  court  in  criminal  cases?  "It 
is  plain  that,  under  the  present  system,  the  judge  does 
actually  withdraw  from  the  consideration  of  the  jury 
some  of  the  essential  facts,  by  laying  down  authorita- 
tively a  rule  of  law  which  prejudges  them ;  the  medi- 
cal men  testify  to  facts  of  their  observation  in  a  mat- 
ter in  which  they  alone  have  adequate  opportunities 
of  observation ;  the  judge,  instead  of  submitting  these 
facts  to  the  jury  for  them  to  come  to  a  verdict  upon, 
repudiates  them  by  the  authority  of  a  so-called  rule 
of  law,  which  is  not  rightly  law,  but  is  really  false 
inference  founded  on  insufiicient  observation,"  ^  which 
"insufficient  observation,"  be  it  remarked,  was  made 
by  medical  men  of  past  ages;  and  Judge  Doe  very 
felicitously  remarks,^  "If  it  is  necessary  that  the  law 


^  Maudsley,  Responsibility  in  Mental  Diseases,  p.  102. 
*  BoarJman  v.  Woodman. 


EXPERTS.  191 

should  entertain  a  single  medical  opinion  concerning 
a  single  disease,  it  is  not  necessary  that  that  opinion 
should  be  a  cast-off  theory  of  physicians  of  a  former 
generation." 

The  dire  confusion,  should  experts  be  permitted 
to  testify  directly  to  the  question  of  insanity,  fore- 
shadowed by  Messrs.  Wharton  and  Stille  in  §  197,  if 
well  founded,  would  be  a  grave,  if  not  fatal,  objection  to 
the  method  herein  recommended,  but  we  think  there  is 
much  greater  danger  of  that  confusion  occurring  under 
the  present  system  of  trial.  While  complete  uniform- 
ity will  probably  not  be  obtained  so  long  as  science  is 
progressive  and  medical  experts  have  the  right  of 
freedom  of  judgment,  yet  we  believe  that  a  near 
approach  to  uniformity  would  obtain,  were  experts, 
qualified  and  commissioned  as  here  recommended, 
required  by  the  courts  to  testify  directly  to  the  all- 
important  question  in  such  cases, — "Is  the  prisoner 
sane  or  insane  ?"  Be  it  remembered  that  the  experts 
have  been  thoroughly  taught  and  instructed  in  the 
view  of  legal  responsibility  in  such  cases  (assuming 
that  the  eminent  legal  gentlemen  on  the  board  of  ex- 
aminers had  done  their  duty),  and  that  they  testify 
directly  to  the  mental  condition  of  the  accused,  after 
due  personal  examinations  had,  and  not  to  misleading 


192       MEDICO-LEGAL   EELATIONS   OF   INSANITY. 

hypothetical  cases  or  speculative  distinctions.  The 
untrustworthiness  of  hypothetical  cases  has  already 
been  shown/  and  not  only  are  they  likely  to  mislead, 
but  the  usual  method  of  interrogating  witnesses  is  also 
open  to  a  similar  objection,  or,  at  least,  to  the  objec- 
tion, that  it  is  not  the  method  best  calculated  to 
secure  the  exact  opinion  of  the  expert  witness. 
Medical  experts  are  usually  required  to  trace  the 
connection  between  the  delusion  and  the  act,  when 
both  are  alike  symptoms  of  the  pathological  con- 
dition in  which  they  have  a  common  origin.  The 
rational  problem  propounded  should  be  to  trace  the 
symptoms  and  effects  to  their  cause  or  causes,  as 
nothing  can  be  gained  by  tracing  the  relation  be- 
tween symptoms,  except  as  together  they  may  aid 
in  diagnosing  the  exact  nature  of  the  disease,  of 
which  the  symptoms  are  the  characteristics. 

§  64.  In  §  198,  Messrs.  Wharton  and  Stille  say, 
"  But,  after  all,  we  must  next  observe  that  the  proposed 
submission  of  the  tests  to  experts  for  decision  is  an 
illusion,  for  the  court  will  have  to  explain  what  it  is 
that  the  experts  say.  No  court  can  abdicate  its  func- 
tions of  weighing  testimony  and  of  declaring  what 

»  Ante,  U  53-56. 


EXPEKTS.  193 

testimony  means.  ...  So  it  must  always  be  in  cases 
of  conflict  of  evidence.  Yet  to  declare,  supposing  the 
testimony  of  experts  to  be  '  law,'  where  the  weight  of 
this  testimony  lies,  is  really  to  declare  what  the  law 
itself  is."  We  were  under  the  impression  that  "  to 
declare  what  the  law  itself  is"  was  peculiarly  the 
province  of  the  judge,  but  we  did  not  suppose  it  was 
his  duty  to  determine  questions  oi  fact,  and  the  sanity 
or  insanity  of  a  person  being  a  question  of  fact,  and 
the  experts  are  called  only  "  when  the  premises  upon 
which  he  founds  his  conclusions  cannot  be  understood 
by  the  court  or  jury  without  study  or  knowledge  on 
that  special  subject,  or  without  the  aid  of  the  knowl- 
edge of  persons  whose  skill  is  superior  to  their  own."  ^ 
The  expert  is  called  expressly  to  explain  a  special 
subject  not  understood  by  the  court  and  jury,  and  yet 
the  judge  "  will  have  to  explain  what  the  experts  say ;" 
a  marvellously  lucid  and  consistent  arrangement,  but 
not  more  unreasonable  than  for  the  court  to  "  submit 
tests  to  experts  for  decision."  The  expert  is  called 
to  determine  whether  or  not  a  person  is  insane.  He 
understands  his  specialty  if  he  is  an  expert,  the  judge 
confessedly  does  not  understand  it,  notwithstanding 


1  Elwell,  p.  275. 
13 


194      MEDICO-LEGAL   EELATIONS   OF    INSANITY. 

"^hicli  the  latter  assumes  superior  knowledge  of  tlie 
subject  by  directing  the  expert  as  to  what  are  the  tests 
or  criteria  on  which  his  judgment  must  be  based.  As 
has  been  stated  before,  there  cannot  be  two  tests  of 
insanity,  a  medical  and  a  legal,  the  one  contradictory 
of  the  other,  and  both  be  correct.  And,  if  so,  the  in- 
sisting upon  certain  legal  tests  by  courts,  contrary  to 
the  opinions  of  experts,  is  only  less  absurd  than  it  is 
pernicious.  In  §  199,  Messrs.  Wharton  and  Still^  say, 
"  Nor  can  harmony  be  by  any  other  course  adjusted 
between  civil  and  criminal  law.  In  many  classes  of 
probate  cases,  the  question  of  a  testator's  sanity  is 
taken  from  the  jury  and  determined  exclusively  by 
the  court."  If  such  is  the  practice,  then  there  is  now 
a  grave  want  of  harmony  between  the  modes  of  pro- 
cedure in  the  administration  of  the  civil  and  criminal 
laws.  In  the  one  the  judge  sometimes  determines  the 
matter  on  his  own  judgment,  and  in  the  other  it  must 
be  determined  by  the  judge,  assisted  by  a  jury.  Is  it 
by  lawyers  and  legislators  who  are  in  favor  of  "  trial 
by  jury"  considered  entirely  safe  to  allow  a  judge, 
who  may  be  profoundly  ignorant  on  the  question  of 
insanity,  to  take  a  case  from  the  jury  and  determine 
it  exclusively  himself?  But  the  judge  of  probate 
may  be  profoundly  ignorant  of  both  law  and  insanity, 


EXPERTS.  195 

as  in  some  States,  Michigan  for  instance,  men  who  are 
not  lawyers  are  eligible  to  be,  and  have  been  elected, 
judges  of  probate.  Under  such  a  system  it  is  not 
wonderful  that  there  is  a  lack  of  harmony  between 
civil  and  criminal  courts  in  insanity  cases,  or  that  the 
people  have  little  confidence  in  the  courts  when  in- 
sanity is  an  element  in  the  trial.  In  §  199a,  Messrs. 
Wharton  and  Stille  most  eloquently  urge  the  danger 
of  any  infraction  of  the  responsibility  of  judges. 
They  say,  "  These  points  are  not  to  be  finally  adjudi- 
cated by  experts,  who  are  neither  appointed  by  the 
State,  so  as  to  be  independent  of  party  choice,  nor  are 
selected  from  their  general  judicial  fitness,  nor  are 
bound  by  precedent,  nor  are  advised  before  they 
come  to  a  decision  by  counsel  presenting  fully  both 
sides."  In  a  categorical  answer  to  these  objections 
it  might  be  urged  that  4)y  the  scheme  hereinbefore 
suggested,  the  experts  would  be  appointed  by  the 
State,  and  therefore  would  be  as  independent  of  party 
choice  as  are  the  judges,  and  would  necessarily  have 
the  judicial  and  medico-psychological  fitness.  So  far, 
the  objections  are  fully  met ;  as  to  precedent,  it  is  ex- 
pected that  each  one,  being  fully  aware  of  the  views 
of  the  whole,  would  give  those  views,  except  when 
occasionally  the  witness  might  entertain  some  views 


196       MEDICO-LEGAL   EELATIONS   OF   INSANITY. 

at  variance  with  those  generally  held,  in  which  case, 
should  it  arise,  he  should  give  the  views  sanctioned 
by  expei'ts  as  a  body,  and  then  give  his  individual 
opinions,  stating  them  to  be  such,  awd  his  reasons  for 
differing  from  the  authoritative  exposition  of  expert 
opinions  on  the  subject.  While,  however,  this  much 
would  be  reasonably  expected  from  every  expert  wit- 
ness, as  only  by  that  means  could  he  give  expression 
to  the  opinions  of  the  body  of  which  he  was  a  single 
member,  yet  it  is  to  be  hoped  that  the  body  of  experts 
would  not  yield  such  a  slavish  adherence  to  "  prece- 
dent" as  to  ignore  well-established  facts,  should  such 
be  presented  in  the  progress  of  scientific  investigation, 
even  though  they  might  conflict  with  a  previously- 
held  erroneous  conclusion.  The  last  of  the  series 
of  objections  does  not  appear  to  be  important,  as  a 
free  discussion  of  the  subject  among  themselves  would 
be  much  more  likely  to  lead  to  a  correct  decision  than 
would  the  advice  of  any  number  of  counsel,  confes- 
sedly uninformed  on  that  subject,  however  eminent 
they  might  be  as  lawyers. 

§  65.  Having,  as  we  think,  fully  answered  all  the 
objections  that  have  l.een  urged  against  such  changes 
as  are  here  proposed,  except  that  of  harmonizing  ex- 
pert opinions,  which  will  hereafter  receive  attention, 


EXPEKTS.  197 

we  would  consider  any  further  discussion  of  tlie  sub- 
ject as  supererogatory  w^ere  it  not  that  we  know  that 
there  are  those  in  every  profession  who  dread  change, 
— who  regard  all  departure  from  usages  sanctioned 
by  age  as  dangerous  innovations, — and  therefore  con- 
sider it  an  imperative  duty  to  keep  strict  guard  at  the 
professional  portals.  Such  persons  are  useful,  and 
their  services  are  in  frequent  requisition  and  are  of 
great  value,  through  their  careful  examination  of  the 
basis  and  reasoning  on  which  new  projoositions  are 
sought  to  be  established ;  but  objecting  to  everything 
new  is  not  an  unalloyed  good,  as  the  objector  some- 
times, through  fear  of  admitting  error,  fails  to  perceive 
the  truth,  or,  if  he  perceives,  fears  to  acknowledge  it. 
Dr.  William  Harvey's  theory  of  the  circulation  of  the 
blood,  although  established  "  on  the  most  solid  and 
convincing  proofs,"  ^  was  not  generally  received  during 
his  lifetime ;  nay,  such  was  the  opposition  to  it  that 
his  practice  declined  after  the  publication  of  his  trea- 
tise, and  the  world  was  practically  deprived  of  the 
•  benefits  of  that  most  important  discovery,  through  the 
objections  of  Parisanus,  Riolanus,  and  others,  for  over 
a  quarter  of  a  century.     In  like  manner  the  world 

^  Hume,  History  of  England,  chapter  Ixii. 


198       MEDICO-LEGAL    EELATIONS    OF    INSANITY. 

lost  the  incalculable  benefits  arising  from  tlie  im- 
portant discoveries  of  Dr.  Jenner  and  Sir  James  Y. . 
Simpson  for  many  years  through  the  same  obstructive 
blindness,  or,  worse, — a  refusal  to  acknowledge  the 
truth  when  convinced.  It  is  expected  that  objections 
will  be  urged,  especially  by  some  members  of  the  legal 
profession,  wlio  will  resist  as  dangerous  innovations 
the  changes  herein  urged  as  necessary,  more  particu- 
larly that  of  giving  what  may  be  considered  as  a 
quasi-judicial  position  to  any  person  outside  their  own 
fraternity,  and  that  of  adopting  any  method  not  in 
accordance  with  "precedent,"  or  sanctioned  by  "legal 
maxims"  venerable  at  least  by  age.  But  would  such 
objections  Le  well  taken  ?  Many  of  the  "  precedents" 
and  "  legal  maxims"  regarding  insanity  have  been 
shown  time  and  again  to  be  incorrect  by  experts,  and, 
as  before  observed,  that  which  is  scientifically  false 
cannot  be  legally  true,  nor  can  that  be  health  in  law 
which  is  disease  in  fact.  Is  it  right  to  continue  the 
use  of  any  "  test,"  "  precedent,"  or  "  maxim"  that  is 
known  to  be  scientifically  false,  when  the  application 
of  the  false  tests,  precedents,  or  maxims  to  cases  in 
controversy  must  result  in  injustice  being  done,  so  far 
as  they  are  depended  upon  in  forming  the  verdict? 
Would  it  not  be  better  to  discard  them  at  once  and 


EXPERTS.  199 

leave  tlie  experts,  who  alone  understand  the  subject, 
to  apply  criteria  which  they  know  to  be  correct,  and 
testify  to  the  result,  giving  their  reasons  therefor  for 
the  information  of  the  court  and  jury?  Let  it  be 
borne  in  mind  that  whatever  views  may  be  entertained 
of  the  nature  and  causes  of  insanity,  it  must  be  ad- 
mitted to  be  a  special  malady,  that  is  u7iderstood  only^ 
and  can  be  explained  only,  by  skilled  experts  iyi  that 
specialty,  and  as  such  the  expert  witness,  not  the  court, 
should  explain  to  the  jury  what  it  is. 

§  66.  This  proposition  again  raises  the  question, 
Would  it  be  safe  to  impose  the  responsibility  of  deter- 
mining directly,  so  far  as  a  witness  can,  tlie  question 
of  the  sanity  of  a  defendant,  upon  experts  qualified 
and  appointed  as  we  have  recommended?  We  un- 
hesitatingly answer  in  the  affirmative.  In  behalf  of 
the  medical  superintendents  of  State  insane  asylums, 
and  the  profession  of  which  they  are  members,  we 
believe  that  they  may  as  safely  be  intrusted  with  any 
responsibility  for  which  they  are  professionally  quali- 
fied as  any  other  class  of  men.  Let  it  be  remembered 
that  the  responsibility,  however  grave  and  important, 
is  not  created  by  the  recommendations  here  made ;  it 
already  exists,  and  will  continue  to  exist,  irrespective 
of  the  question  as  to  the  individuals  or  classes  on  whom 


200       MEDICO-LEGAL   EELATIONS   OF   INSANITY. 

it  may  rest.  Tlie  gravity  of  the  responsibility  is  un- 
doubtedly great,  and  because  of  its  greatness  we  earn- 
estly urge  that  it  be  transferred  from  courts  who 
confessedly  do  not,  to  experts  who  confessedly  do, 
know  all  that  is  known  of  that  most  complex  subject 
whence  arises  the  responsibility.  We  think  the  phy- 
sicians' duties  as  important,  their  usefulness  as  great, 
and  their  responsibilities  as  grave  as  tliose  of  any  other 
profession,  and  as  a  class,  in  the  discharge  of  those 
arduous  duties  and  obligations,  they  bring  to  bear 
as  much  intBlligence  and  as  high  educational  and 
scientific  attainments  as  do  legal  gentlemen  in  the 
discharge  of  their  duties.  True,  physicians  seldom 
occupy  the  high  official  positions  which  are  so  fre- 
quently attained  to  by  members  of  the  legal  fraternity. 
Their  training  and  habits  of  thought  do  not  fit  them 
for  such  positions,  but  their  professional  work  is  none 
the  less  important  or  useful  on  that  account.  Judges 
and  lawyers  have  occasionally  cases  in  which  the  issue* 
to  be  decided  is  life  or  death.  Medical  men  in  large 
practice  have  the  responsibility  of  cases  in  which  life 
or  death,  health  or  disease,  are  in  the  balance,  not 
occasionally  but  daily,  nay,  many  times  a  day,  and 
that  for  rulers  of  nations,  gallant  officers,  learned 
judges,  right  reverend  prelates,  wise  legislators,  and 


EXPERTS.  201 

all  grades  between  those  classes,  and  the  most  obscure, 
wretched,  and  debased,  all  trusting  their  lives  un- 
conditionally to  the  probity  and  knowledge  of  phy- 
sicians. If  it  is  true  that  "  all  that  a  man  hath  will 
he  give  for  his  life,"^  there  cannot  be  a  more  grave 
responsibility  laid  upon  any  class  than  is  imposed  upon 
the  medical  profession  by  every  civilized  community. 
How  that  most  important  trust  is  administered  will 
be  properly  answered  by  reference  to  the  trust  re- 
posed in  old,  tried,  family  physicians.  Bat  their 
responsibilities  are  not  restricted  to  their  ordinary 
daily  duties  of  healing  the  sick,  and  caring  for 
the  wounded.  In  courts  of  justice  their  services 
are  important :  as  proof  of  this  we  need  only  men- 
tion the  fact  that  many  murderers  would  escape 
detection  and  punishment  were  it  not  for  the  chem- 
ical and  pathological  knowledge  of  physicians.  Their 
disinterested  usefulness  is  also  conspicuously  shown 
in  their  vast  unrequited  labors  in  the  domain  of 
sanitary  science  and  hygiene, — the  j^revention  of 
disease  which  they  would  be  paid  for  curing, — in 
their  demonstrating  that  insanity,  the  plague,  scrofula 
on    shipboard,  and    kindred    maladies    are   not   the 

^  Satan,  Job  ii.  4. 


202      MEDICO-LEGAL   EELATIONS   OF   INSANITY. 

visitations  in  anger  of  an  offended  Deity,  but  are 
due   to   natural   causes  wliicli    might   often  be  pre- 
vented.    In  epidemics  of  cholera,  smallpox,  yellow 
fever,  etc.,  with  a  courage  and  philanthropy  worthy 
of  a  Howard,  physicians  are  always  found  at  the  post 
of  danger,  regardless  of  personal  risk,  and  often  with- 
out fee  or  pecuniary  reward.     It  matters  not  to  them 
how  many  people  are  stricken  down  by  the  dread 
disease,  nor  how  many  of  themselves  fall  victims  to 
the  fell  destroyer ;  when  one  dies  another  is  ready  to 
take  his  place — ready  to  breathe  the  noxious  air  of 
the  pest-houses,  where  the  contagion  is  so  appalling 
that  legal  gentlemen  often  cannot  be  induced  by  any 
consideration,  to  visit  patients  in  extremis  who  desire 
to  make  testamentary  disposition  of  property;  and, 
where  the  gallant  soldier,  who  has  perchance  led  a 
"forlorn  hope"  or  "stormed  a  battery"  with  the  utmost 
coolness  and  intrepidity,  would  blanch  and  tremble 
before  "  the  pestilence  that  walketh  in  darkness"  ;  yet, 
fully  conscious  of  their   danger,  in   the   interest  of 
suffering  humanity  physicians  unflinchingly  meet  the 
terrible  enemy,  and  by  night  and  by  day  try  to 

"  Foil  his  wild  rage  by  steady  skill," 

and  in  trying  to  save  the  lives  of  others  they  volun- 


EXPEETS.  203 

tarily  sacrifice  their  own.  The  patriotic  soldier  offers 
his  life  in  defence  of  the  liberties  of  his  country.  If 
he  lives,  fame  and  renown  may  be  his.  If  he  dies,  his 
memory  is  kept  green  by  a  grateful  country,  and  his 
widow  and  children  are  cared  for  by  the  government. 
Not  so  the  physician,  who  at  such  fearful  personal 
hazard  braves  death,  that  others  may  live.  JSTo  memo- 
rial day  is  set  apart  to  keep  the  memory  of  his  heroic 
self-devotion  before  the  people  whom  he  died  to  save. 
His  last  hours  are  not  spent  in  the  bosom  of  his  family. 
No  loving  hands  smooth  his  pillow.  He  suffers  the 
agonies  of  dissolution  in  the  pest-house  among  stran- 
gers, who  cannot,  if  they  would,  help  him.  Death 
closes  his  career.  His  body,  taken  by  the  common 
dead-cart,  is  laid  by  strangers  irreverently  in  his  last 
resting-place.  No  funeral  cortege;  nay,  so  great  is  the 
terror  of  the  dread  contagion  that  not  even  his  rela- 
tions dare  follow  his  sometimes  cofiinless  remains  to  the 
grave.  Thus  fall,  in  every  severe  epidemic,  men  among 
the  noblest  of  the  race,  in  a  cause  as  holy  and  with  a 
courage  as  heroic  as  ever  actuated  martyr  or  patriot. 
How  do  States  and  nations  recognize  and  reward  such 
services? 

"  Is  the  spot  mark'd  with  no  colossal  bust? 
Nor  column  trophied  for  triumphal  show  ? 
None." 


204      MEDICO-LEGAL   EELATIONS   OF   INSANITY. 

No  record  is  made  by  tlie  State  of  their  "faith- 
fulness even  to  the  death,"  and  no  pensions  are 
bestowed  upon  their  widows  and  fatherless  children. 
"  Homines  ad  Deos  nulla  re  propius  accedunt,  quam 
salutem  hominibus  dando." — Cicero.  The  gentlemen 
recommended  to  be  exclusively  used  as  experts  in 
insanity  cases  are  members  selected  for  their  special 
qualifications  from  the  j)rofession  to  which  reference 
has  just  been  made.  Would  they,  a  priori,  be  con- 
sidered improper  persons  to  intrust  with  any  respon- 
sibility, however  great,  provided  the  duties  imposed 
were  of  the  class  for  which  they  were  specially  j^re- 
pared  by  education  and  training  ? 

§  67.  Suppose  a  case.  Twin  brothers,  as  nearly 
alike  as  possible  in  every  respect,  having  pursued, 
with  equal  ability  and  industry,  the  same  course 
of  preparatory  study.  The  one,  after  matriculation, 
studied  law,  the  other,  medicine.  In  process  of  time, 
after  examination  as  recommended  herein,  the  phy- 
sician was  declared  eligible,  and  received  the  appoint- 
ment of  medical  superintendent  of  a  State  asylum  for 
the  insane,  at  the  same  time  his  brother,  the  lawyer, 
was  elevated  to  the  bench.  After,  say,  ten  years,  a 
murder  case  was  tried  before  the  judge,  the  only  de- 
fence being  insanity,  and   the   only  exj^ert  witness 


EXPERTS.  205 

called  was  the  judge's  brother.  Which  of  the 
brothers  would  be  able,  most  lucidly  and  scientifically, 
to  instruct  the  jury  as  to  whether  or  not  the  prisoner 
at  the  bar  was  or  "was  not  insane?  The  medical 
brother  was  called  to  instruct  his  brother  the  judge, 
as  well  as  the  jury,  regarding  a  subject  on  which  both 
judge  and  jury  needed  information  of  a  special  char- 
acter. Is  there  any  reason  for  supposing  the  physician 
would  be  less  honest  or  trustworthy  than  his  brother 
the  judge?  In  several  important  respects  they  are 
equal.  Both  are  public  officers  to  whom  have  b^n 
committed  grave  trusts;  both  are  responsible  to  the 
State  or  people  for  the  administration  of  their  trust; 
both  are  alike  independent  of  the  parties  to  the  suit 
pending;  and  each  is  assumed  to  have  been  desirous 
of  doing  only  that  which  was  right.  There  is,  how- 
ever, an  important  difference  between  them.  The  one 
understands  the  subject,  and  the  other  does  not.  Sup- 
pose, still  further,  that  the  expert,  in  his  examination, 
testified  that  the  "  right  and  wrong,"  or  some  other 
of  the  so-called  legal  tests  of  insanity,  was  erroneous 
and  untrustworthy.  What  would  be  thought  of 
the  assumption,  or  rather  presum^Dtion,  of  the  judge 
were  he  to  direct  the  jury  that  they  must  accept  the 
"knowledge  of  right  and  wrong"  as  the  true  test. 


206      MEDICO-LEGAL   EELATIONS   OF   INSANITY. 

notwithstanding  his  expert  brother's  testimony  to  the 
contrary  ?  Leave  out  the  consanguinity ;  and  there 
remains  what  has  occurred  time  and  again,  and  must 
continue  to  happen  for  all  time,  unless  the  system 
undergoes  a  change.  If  the  court  "after  all  must 
explain  what  the  expert  says"  to  the  jury,  nay,  must 
flatly  contradict  the  expert  witness,  on  the  authority 
of  some  "precedent"  or  "maxim;"  instructing  the  jury 
to  decide  as  a  question  of  law  that  which  is  a  matter 
of  fact,  which  the  jury  instructed  by  the  expert  witness 
ought  to  determine,  we  again  ask,  for  what  purpose  was 
the  expert  called  ? 

The  method  of  taking  expert  testimony  is  open  to 
another  objection.  An  expert,  being  amicus  curice, 
and  expected  to  explain  matters  "  not  within  the 
knowledge  of  the  court  and  jury,"  should  be  per- 
mitted to  arrange  and  present  his  explanations  in 
the  manner  in  which  he  can  most  accurately  give  a 
transcript  of  his  views,  whether  orally  or  by  deposi- 
tion (but  in  either  case  to  be  subject  thereafter  to 
examination  and  cross-examination) ;  as,  in  answering 
questions  adroitly  put,  the  necessary  logical  sequences 
are  interrupted,  and  counsel  interested  on  one  side  or 
the  other  may  not  always  design  that  their  questions 
shall  expiscate  the  whole  truth,  but  only  so  much  of 


EXPERTS.  207 

it  as  will  benefit  their  client;  hence  it  often  happens 
that  the  expert  can  only  convey  a  part  of  his  views  to 
the  court ;  and,  a  partial  statement  of  a  truth  always 
misleads.  As  has  been  urged  before,  the  expert  wit- 
ness should  not  be,  even  nominally,  subpoenaed  "on 
the  part  of  the  prosecution"  or  "  of  the'  defence,"  he 
should  be  "  in  behalf  of  the  court."  The  bare  sup- 
position that  his  scientific  knowledge  is  intended  to 
be  used  for  the  advantage  of  either  side  is  most 
pernicious;  and,  as  he  is  expected  to  furnish  infor- 
mation, not  in  the  possession  of  either  of  the  parties 
to  the  suit,  for  the  benefit  of  the  court  and  jury,  he 
should  be  permitted  to  arrange  and  state  his  views  in 
the  manner  he  himself  may  think  will  most  clearly 
convey  his  ideas  and  conclusions ;  as,  by  that  method 
all  parties  who  desire  to  know  "  the  truth,  the  whole 
truth,  and  nothing  but  the  truth,"  would  be  much 
better  served  than  by  the  practice  of  having  the  ex- 
perts answer  only  such  questions  as  are  put  to  them. 

§  68.  The  objection  that  "  American  common  law 
courts  have  no  process  for  the  collection  of  the  opinions 
of  experts  on  litigated  questions  of  criminal  responsi- 
bility"^ will  now  be  considered.     The  distinguished 

^  Wharton  and  Still6,  Med.  Juris.,  §  194. 


208       MEDICO-LEGAL   EELATIONS   OF   INSAmTY. 

authors  just  quoted  in  several  succeeding  sections  des- 
cant very  earnestly  on  the  confusion  that  would  fol- 
low for  want  of  such  a  process,  and  declare  that  there 
is  "  no  court  of  experts  who  can  harmonize  antago- 
nistic views"  of  experts.  The  objection  is  an  impor- 
tant one.  All  must  admit  the  paramount  importance 
of  uniformity  of  procedure.  We  have  shown  that  one 
important  element  in  the  uncertainty  of  the  conviction 
or  acquittal  of  a  prisoner,  where  insanity  is  alleged,  is 
the  want  of  uniformity  in  the  rulings  of  courts.  An- 
other element  is  the  legal  presumption  that  every 
physician  is  necessarily  an  expert  in  insanity.  We 
have  shown  elsewhere  in  this  chapter  that  that  pre- 
sumption is  not  according  to  fact,  and  we  here  frankly 
admit  there  is  no  hope  for  uniformity  in  the  opinions 
of  8uch  so-called  experts  should  the  courts  continue 
the  practice  of  allowing  them  to  give  testimony  in  in- 
sanity trials.  But  while  the  oj^inions  of  irresponsible 
non-experts  will  probably  continue  to  be  contradictory 
one  of  another,  quite  beyond  the  hope  of  reconcilia- 
tion, such  would  not,  we  believe,  be  the  case  if  only 
experts  in  the  correct  use  of  the  term  were  exclusively 
used  by  the  courts,  and  if  to  the  necessary  professional 
qualification  were  added  the  official  responsibility  in 
the  employment  only  of  medical  superintendents  and 


EXPERTS.  209 

their  first  assistants  of  "State  Asylums  for  the  Insane," 
we  have  no  doubt  that  almost,  if  not  quite  entire  har- 
mony of  opinion  would  be  reached  with  reference  to 
all  points  affecting  the  mental  condition  of  alleged 
insane  criminals  or  testators. 

It  will  be  readily  understood  that  it  would  be  a 
much'  less  difficult  task  to  harmonize  the  opinions  of 
one  hundred  and  fifty  to  two  hundred  experts  thor- 
oughly acquainted  both  theoretically  and  practically 
with  their  specialty  than  it  would  be  to  reconcile  the 
crude,  absurd  notions  of  seventy-five  thousand  to  one 
hundred  thousand  physicians  on  an  abstruse  subject 
to  which  they  had  given  no  special  attention.  Inde- 
pendently of  the  vast  difference  in  the  number  of 
opinions  to  be  harmonized,  a  very  important  element 
in  the  problem  is  that  those  who  are  the  least  well 
informed  on  any  professional  subject  are  usually  the 
most  positive  and  dogmatic,  while  those  whose  knowl- 
edge is  extensive  and  varied  are  generally  more  ready 
to  hear  and  carefully  examine,  in  the  spirit  of  philo- 
sophical inquiry,  all  opinions  on  any  subject  under 
discussion,  when  fairly  presented  and  reasonably  sup- 
ported. 

§  69.  According  to  the  letter,  it  is  true  that  there 
is  no  "  court  of  experts  who  can  harmonize  antago- 

14 


210      MEDICO-LEGAL   EELATIONS   OF   INSANITY. 

nistic  views ;"  but  substitute  tlie  word  "  organization," 
or  "  association/'  for  "  court"  in  the  sentence,  and  it  is 
not  true ;  as  wdll  be  seen  by  a  reference  to  the  organ- 
ization known  as  the  American  Medical  Association. 
The  existence  of  this  important  Association  being 
ignored  by  Messrs.  Wharton  and  Stills,  a  brief  refer- 
ence to  its  aims,  organization,  and  work,  appears  to 
be  necessary.  In  the  plan  of  the  Association's  or- 
ganization (May,  1846)  it  is  "  declared  expedient  for 
the  medical  profession  of  the  United  States  to  institute 
a  National  Medical  Association,"  and  its  first  aim  is 
declared  to  be  "to  give  frequent,  united,  and  emphatic 
expression  to  the  views  and  aims  of  the  niedical 
profession  in  this  country."  The  Association  is 
eminently  a  representative  one,  as,  with  a  few  un- 
important exceptions,  the  only  way  to  obtain  mem- 
bership is  by  being  elected  a  delegate  by  any  State 
or  county  medical  society  in  the  United  States,  pro- 
vided the  standard  of  admission  to  membership  in 
such  State  or  county  society  is  in  accordance  with  the 
requirements  of  the  American  Medical  Association. 
Permanent  membership  in  the  Association  may  be 
had  by  any  member  who  has  been  a  delegate,  on 
payment  of  yearly  dues  and  by  conforming  to  the 
rules,  by-laws,  and  code  of  ethics.     The  Association 


EXPERTS.  211 

meets  annually,  tlie  convention  lasting  four  days. 
Usual  attendaiuce  of  members,  eight  hundred  to  one 
thousand.  There  are  two  sessions  daily.  The  fore- 
noon session  is  occupied  by  the  reading  of  essays  on 
subjects  of  general  interest  to  the  profession  as  a 
whole,  discussion,  etc.  For  convenience  in  the  dis- 
cussion of  special  subjects,  the  body  is  divided,  in  the 
afternoon,  into  five  sections,  to  wi»t : 

1.  Practical  Medicine,  Materia  Medica,  and  Phys- 
iology ; ' 

2.  Obstetrics  and  Diseases  of  Women  and  Children ; 

3.  Surgery  and  Anatomy  ; 

4.  Medical   Jurisprudence,    Chemistry,   and    Psy- 
chology ; 

5.  State  Medicine  and  Public  Hygiene ; 

and  essays  on  special  subjects  are  referred  to  the 
appropriate  section,  where,  after  being  read  and  the 
subject  fully  discussed,  a  vote  is  taken,  which  vote 
announces  the  opinion  of  the  section  ;  and  if  unchal- 
lenged by  the  full  convention,  declares  the  opinion  of 
the  "  Association ;"  which  is  the  authoritative  exj^res- 
sion  of  the  profession  in  the  United  States.  (I  refer 
exclusively  to  Allopathic,  or  what  is  commonly  known 

^  Trans.  Amer.  Med.  Assoc,  vol.  sxviii.  p.  654. 


212       MEDICO-LEGAL   RELATIONS   OF   INSANITY. 

as  "regular  medicine,"  but  am  informed  that  the  Ho- 
moeopaths have  a  similar  organization, — the  Amer- 
ican Institute  of  Homoeopathy.)    It  will  be  seen  how 
readily  every  subject  in  dispute  in  any  department 
of  medicine  can   be   brought   before   the   specialists 
of  the  appropriate  sections  and  there  be  authorita- 
tively disposed  of.     To  illustrate:  Dr.  R.  J.  Patterson, 
of  Batavia,  Illinois,  was  requested  to  prepare  a  paper 
on  the  following  subject:  "Do  the  facts  justify  the 
recognition  of  '  moral  insanity'  as  a  distinct  form  of 
disease?"  and  to  report  to  the  next  meeting  of  the 
American  Medical  Association.     Accordingly,  at  the 
meeting  held  at  Chicago,  Illinois,  in  1877,  Dr.  Pat- 
terson reported  in  a  very  able  paper,  reference  of  the 
subject  having  been  made  to  the  superintendents  of 
"  twenty-seven  hospitals  for  the  insane"  for  facts  on 
which  to  base  his  conclusions,  and  his  answer  to  the 
proposition  is  in  the  negative.^    During  the  free  dis- 
cussion had  on  the  paper  not  a  single  expert  of  this 
country  then  present  (and  the  attendance  in  the  section 
was  large)  tooh  the  affirmative  side  of  the  proposition. 
Dr.  Bucke,  superintendent  of  the  insane  asylum  at 
London,  Canada,  alone  favoring  the  affirmative  (he 


^  Trans.  Amer.  Med.  Assoc,  vol.  xxviii.  pp.  359-64. 


EXPEETS.  213 

having  an  ex  gratia  standing  in  the  Association) ;  hence 
it  was  unanimously  decided  by  the  vote  then  and  there 
taken  that  the  experts  on  insanity  of  this  country  do 
not  recognize  the  existence  of  "  moraV^  without  "  intel- 
lectuaV  insanity  (the  mania  sine  delirio  of  Pinel). 
At  the  same  meeting,  and  in  a  similar  manner,  "  the 
relations  of  spiritualism  to  medical  jurisprudence" 
were  also  considered  in  a  carefully-prepared  paper 
by  Dr.  John  P.  Gray,  of  Utica,  New  York;  and  after 
discussion  had  thereon,  the  conclusion  was  unani- 
mously reached  "  that  a  belief  in  spiritualism  is  not 
evidence  of  insanity,  but  in  some  cases  it  might  be 
shown  to  be  undue  influence."^  At  the  same  meeting 
the  writer  read  a  paper  on  "  Medical  Testimony  with 
Special  Reference  to  Cases  of  Insanity,"^  in  which  it 
was  held  that  general  medical  practitioners  are  not 
experts  in  insanity,  and  ought  not  to  be  required  or 
permitted  to  give  testimony  as  such.  The  paper  also 
introduced  the  "  physical  media  theory  of  insanity ;" 
and  after  discussion  the  paper  was  received  and 
adopted.  Now  observe,  that  at  a  single  meeting  of 
the  "  American  Medical  Association"  four  "  vexed 
questions"  received  their  quietus, — id  est,  the  opinion 

^  Trans.  Amer.  Med.  Assoc,  vol.  xxviii.  p.  353.' 
2  Ibid.,  pp.  365-70. 


214      MEDICO-LEGAL   EELATIOIfS   OF   INSANITY. 

of  the  medical  profession  was  authoritatively  pro- 
nounced. In  justice  to  Messrs.  Wharton  and  Stille, 
we  desire  to  say  that  these  decisions  had  not  been 
reached  when  they  wrote  that  "  the  fact  is  there  is  no 
settled  opinion  of  experts,  because  there  is  no  final 
court  by  whom  conflicts  among  experts  can  be  recon- 
ciled and  a  settled  law  pronounced"  (I  use  the  edition 
of  1873  of  their  work),  but  the  American  Medical 
Association  had  at  that  time  existed  for  over  a  quar- 
ter of  a  century,  with  all  its  capabilities  and  facilities 
for  "giving  united  and  emphatic  expression  to  the 
views  ...  of  the  medical  profession  of  this  coun- 
try." It  is  also  worthy  of  notice  that  the  settled 
opinion  of  experts,  confirmed  by  the  medical  profes- 
sion, is  reached  and  promulgated  without  cost  or 
trouble  either  to  the  State  or  to  suitors ;  whereas,  in 
the  law,  to  obtain  the  opinion  of  the  Supreme  Court, 
the  usual  procedure  would  be  by  appeal  from  the 
Circuit  Courts,  with  the  attendant  trouble  and  ex- 
pense. True,  the  decision  of  the  "  American  Medical 
Association"  would  not  bind  the  individual  member, 
just  as  one  of  a  bench  of  judges  may  dissent  from  the 
rulings  of  that  body,  but  the  declared  opinion  of  the 
majority  would,  nevertheless,  constitute  the  law,  the 
dissenting  minority  to  the  contrary  notwithstanding. 


EXPERTS.  215 

§  70.  The  expert  who  conscientiously  differed  from 
the  opinion  of  the  majority  would  necessarily,  when 
under  the  oath  of  a  witness,  testify  to  his  own  opin- 
ions, even  if  contradictory  of  the  declared  views  which 
had  received  the  imprimatur  of  the  court  of  experts 
and  of  the  medical  profession,  but  his  opinion  would 
be  as  impotent  as  would  be  that  of  the  dissenting 
judge,  simply  having  whatever  weight  his  individual 
ability  or  re^Dutation  could  confer  upon  it.  Even  if 
no  other  expert  were  called  upon  to  testify,  his  state- 
ments that  those  were  his  individual  views,  and  were 
not  suj^ported,  nay,  were  antagonized  by  experts  gen- 
erally, would  carry  their  own  refutation,  as  far  as  the 
particular  views  in  which  he  was  not  in  harmony 
with  experts  generally  were  concerned;  because  every 
expert  would,  if  properly  questioned,  state  what  the 
views  of  experts  as  a  whole  were  on  every  topic  that 
had  been  brought  before  that  body,  and  on  which  an 
authoritative  conclusion  had  been  reached. 

Should  the  suggestions  herein  urged  be  adopted  and 
become  law,  we  think  there  is  not  the  slightest  doubt 
that  the  experts,  in  the  interest  of  justice,  and  of  their 
own  reputations,  would  see  to  it  that  their  views  on  all 
medico-legal  questions  which  might  properly  occupy 
them   before   the   courts  would   be  thorouglily  har- 


216      MEDICO-LEGAL   RELATIONS   OF  INSANITY. 

monized.  Give  tliem  to  understand  that  tlie  whole 
responsibility  of  testifying  as  to  who  are  and  who  are 
not  insane  would  rest  with  them ;  that  they  would  be 
held  to  strict  accountability  for  the  manner  in  which 
tliey  discharged  their  duty;  and  we  venture  to  pre- 
dict that  they  would  be  found  to  be  eminently  worthy 
of  the  trust.  Being  comparatively  few  in  number  and 
all  familiar  with  the  subject,  if  disinterestedness  and 
ordinary  probity  are  granted  to  them,  they  appear  to 
have  all  the  requisites  for  efficiently  discharging  that 
duty.  It  may  be  mentioned  that  in  1844  there  was 
formed   the   "Association   of   Medical   Supeein- 

TENDENTS  OF  AMERICAN  INSTITUTIONS  FOE  THE  IN- 
SANE," the  prominent  design  of  which  was,  "by  a 
comparison  of  views  and  a  careful  study  of  what  has 
already  been  done  for  the  insane  to  secure  for  the  fu- 
ture a  higher  standard  for  lios2)itals  and  a  more  liberal 
and  enlightened  treatment  for  all  classes  who  are  suf- 
fering from  mental  disorders."^  This  "Association" 
is  composed  of  the  chief  medical  officers  of  all  the 
regularly  organized  institutions  for  the  insane  on  the 
American  continent,  and  holds  its  meetings  annually. 
It  has  already  done  incalculable  good  by  discussing 
the  various  plans,  and  adopting  the  best  methods  for 

'  Preface  to  "Propositions  and  Resolutions,"  p.  7,  1876, 


EXPEETS.  217 

treating  tliat  most  unfortunate  class,  tlie  insane.  It 
may  be  rem-arked  that  the  "Association"  has  not  taken 
special  notice  of  the  duties  of  medical  experts  in  in- 
sanity trials ;  but,  should  giving  expert  testimony  be 
made  their  duty,  and  theirs  exclusively,  a  slight 
change  in  their  organization  would  afford  them  every 
facility  for  securing  complete  uniformity  in  opinion 
on  almost  every  subject  within  their  province;  and, 
if  complete  harmony  of  belief  could  not  be  secured  on 
some  particular  point,  an  authoritative  statement  of 
the  views  of  the  "  Association"  could  be  made  by  the 
majority;  and  the  very  remarkable  unanimity  (al- 
most without  exception)  with  which  the  large  number 
of  propositions  and  resolutions  on  all  subjects  con- 
nected with  the  insane  have  been  received  and 
adopted  during  the  thirty-eight  years  the  Association 
has  existed,  affords  the  strongest  assurance  that  all  its 
members  would  thoroughly  harmonize  their  views,  as 
experts,  and  thus  it  would  "give  to  the  jury  the  full 
renditions  of  science  on  the  questions  in  litigation." 

§  71.  In  conclusion,  we  have  shown  that  a  misap- 
prehension of  the  nature  of  insanity  as  a  primary 
cause  underlies  the  uncertainty  of  verdicts,  and  conse- 
quently the  frequent  miscarriage  of  justice  in  insanity 
trials. 


♦  218       MEDICO-LEGAL   RELATIONS   OF   IN^SANITY. 

From  the  extracts  of  "  rulings  of  courts,"  to  be  found 
in  tlie  Appendix,  whicli  liave  been  culled  from  an 
almost  limitless  number  on  record,  it  will  be  seen  tliat 
"legal  tests"  have  not  in  the  past  harmonized,  and 
never  can  in  the  future  harmonize,  the  questions  of 
responsibility  in  insanity  cases,  as  such  "tests"  are 
at  variance  with  science ;  and  that  verdicts  cannot  be 
otherwise  than  uncertain  will  be  readily  apprehended 
when  to  these  erroneous  "  legal  tests"  are  added  fal- 
lacious, misleading  "hypothetical  cases,"  untrust- 
worthy testimony  of  unskilled  witnesses  impro23erly 
called  experts,  and  last,  but  not  least,  having  the 
"philosophy  of  the  common  law  doctrine  of  insanity" 
depend  ujDon  an  unverified  theory.^ 

If  it  is  true,  as  asserted  by  Messrs.  Wharton  and 
Stille,^  that  in  the  "  certainty  at  least  as  much  as  in 
the  wisdom  of  the  opinions  promulgated  lies  our 
safety,"  the  converse  of  the  proposition  must  be 
equally  true,  viz. :  that  in  the  want  of  certainty  of 
opinion  and  in  the  irrationality  of  procedure  lie  inse- 
curity and  danger.  Where  the  law  is  uncertain  there 
is  no  law.^     Notwithstanding  all  our  enlightenment, 

1  Wharton  and  Still6,  Med.  Juris.,  |  318. 

2  Ibid.,  I  197. 

'  "  Ubi  jus  incertum,  ibi  jus  nullum." — Legal  Maxim. 


EXPERTS.  219 

and  despite  the  unparalleled  provisions  that  have  been 
made  for  the  care  of  the  needy  and  unfortunate,  the 
de^jlorable  fact  is  continually  forced  upon  our  atten- 
tion that  there  is  a  large  class  of  cases  in  which  it 
is  a  mere  matter  of  haphazard  whether  the  criminal 
shall  be  declared  innocent,  or  the  innocent  person  be 
executed !  Surely  the  urgent  necessity  existing,  for 
immediate  and  radical  changes  in  the  law  and  in  the 
modes  of  procedure  of  the  courts,  which  have  for  so 
long  a  time  anomalously  disgraced  our  civilization, 
justifies  a  demand  in  tones  so  earnest  and  peremptory 
that  few  will  wish  or  dare  to  oppose  the  necessary 
amendments.  All  these  elements  of  uncertainty,  we 
believe,  can  be  removed  by  the  adoption  of  some  such 
system  as  is  herein  proposed.  The  causes  of  uncer- 
tainty being  removed,  insanity  trials  would  cease  to  be 
an  opprobrium  to  the  courts  and  to  the  medical  pro- 
fession, and  verdicts  would  be  as  uniformly  certain  in 
criminal  insanity  trials  as  they  are  in  any  other  class 
of  cases,  "a  consummation  devoutly  to  be  wished." 
The  plea  of  insanity  would  cease  to  be  urged  in 
defence  of  sane  criminals  as  a  der-nier  ressort,  when 
the  proof  of  guilt  was  irrefragable  and  no  other  de- 
fence tenable,  as  such  prisoners  could  not  then  hope 
to  escape  the  j)enalties  due  to  their  crimes  through  the 


220      MEDICO-LEGAL   EELATIOJ^S   OF   INSANITY. 

many  acknowledged  causes  of  uncertainty  now  exist- 
ing, and  tlie  same  certainty  whicli  would  prevent  the 
sane  criminal  escaping  deserved  punishment  would, 
ccdteris  paribus,  protect  really  insane  persons.  Baron 
Bramwell's  dictum  to  the  contrary  notwithstanding. 

Changes  so  radical  in  their  nature  and  sweeping 
in  their  scope  as  those  we  have  recommended  could 
hardly  be  made  without  disturbing  for  a  time  some 
department  of  the  legal  machinery  ;  but  if  the  phys- 
ical nature  of  insanity  is  admitted  to  have  been  estab- 
lished as  a  true  principle,  and  we  think  it  has,  these 
laws  can  be  amended  and  modes  of  procedure  changed 
to  accord  with  that  principle,  and  the  amended  laws 
would  ultimately  be  administered  not  only  without 
friction,  but  with  uniformity  and  harmony.  That 
such  changes  will  be  made  in  the  not  distant  future 
we  believe;  and  then,  students  will  look  back  upon 
the  insanity  trials  of  the  present,  with  as  much  amaze- 
ment as  that  with  which  we  now  regard  witchcraft  trials 
in  the  past;  and  we  confidently  believe  these  most 
important  desiderata  may  be  reached  through  the 
permanent  establishment  on  a  scientific  basis  of  the 
medico-legal  relations  of  insanity. 


APPENDIX. 
judges'  opinions. 

(The  figures  refer  to  the  sections.) 

""Wild-Beast  Test" — Absolute  Alienation  of  Keason  Necessary,  72 
— Insanity  no  Bar  to  Responsibility,  must  be  punished  as  a 
"Warning  to  Others — Punishment  of  the  Insane  against  Law,  of 
Extreme  Inhumanity,  and  is  no  Warning  to  Others,  73 — "  Right 
and  "Wrong"  Test  affirmed,  74 — Last  Opinion  declared  to  be  of 
Exquisite  Inhumanity,  absurd,  and  impracticable,  75 — Total  In- 
sanity precludes  a  Trial,  Insanity  regarding  the  Particular  Act 
sufficient — The  Test  lies  in  the  "Word  "  Power,"  had  he  Power 
to  think  and  act  rightly?  76 — Did  he  know  that  the  Act  was 
forbidden  by  the  Law? — An  Offence  against  the  Laws  of  God 
and  Nature — ^Burden  of  Proof  on  the  Accused,  and  must  be  Un- 
questionable, and  Alienation  absolute,  77 — Must  know  that  he 
■was  doing  Wrong  in  the  Act  in  Question — Must  know  that  he  was 
doing  Wrong  in  the  Act  in  Question  and  at  the  Time,  78 — The 
Law  does  not  recognize  "Uncontrollable  Impulse" — "Uncontrol- 
lable Impulse"  no  Defence,  79 — Uncontrollable  Impulse  a  good 
Defence — Under  "  Uncontrollable  Impulse"  the  Act  was  not  his 
Act,  and  he  is  rot  Guilty,  80 — "  Moral  Insanity"  relieves  from 
Responsibility,  81 — "  Moral  Insanity"  affords  no  Relief  from  Re- 
sponsibility— "  Moral  Insanity  does  not  relieve  from  Responsi- 
bility, 82 — Proof  of  Insanity  rests  on  the  Prisoner,  if  in  doubt 
the  Jury  ought  to  convict — The  Proof  of  Insanity  to  acquit  ought 
to  be  as  strong  as  of  Guilt  to  convict,  83 — The  State  must  prove 
Sanity  as  well  as  Guilt — After  the  Presumption  of  Sanity  has  been 
removed,  the  State  must  prove  Sanity  as  well  as  Guilt,  84 — Pre- 
ponderance of  Evidence  of  Insanity  ought  to  acquit,  85 — A  Rea- 
sonable Doubt  as  to  Sanity  ought  to  acquit — A  Doiibt  whether 

221 


222      MEDICO-LEGAL   EELATIONS   OF   INSANITY. 

the  killing  was  the  result  of  Mental  Disease  ought  to  acquit,  86 — 
Whether  there  is  such  a  Disease  (Dipsomania),  and  whether  the 
Prisoner  had  it,  are  Questions  of  Fact,  not  of  Law — When  the  Ex- 
pert testifies  to  one  Test  of  Insanity  and  the  Judge  gives  another, 
either  the  Expert  testifies  to  a  Question  of  Law  or  the  Judge  to  a 
Matter  of  Fact — All  Symptoms  and  all  Tests  of  Mental  Disease  are 
Matters  of  Fact  for  the  Jury,  87 — Medical  Theories  of  Insanity 
arise  from  the  vicious  Principle  of  considering  Insanity  a  Disease, 
88 — Lawyers  are  profoundly  ignorant  of,  and  Medical  Superin- 
tendents know  all  that  is  known  of  Mental  Diseases,  89— Medical 
Expert  Testimony  of  no  Value — Medical  Testimony  not  only  value- 
less, but  worse  than  that,  90 — Medical  Experts  much  better  ac- 
quainted with  Insanity  than  either  Courts  or  Lawyers — Medical 
Expert  Opinions  Competent  Evidence  and  entitled  to  great  respect, 
91. 

INSANITY   MUST   BE   ABSOLUTE. 

{Wild-Beast  Test.) 

§  72.  In  tlie  trial  of  Arnold,  an  undoubted  lunatic, 
for  sliooting  at  Lord  Onslow,  in  1723,  Mr.  Justice 
Tracey  said,  "  It  is  not  every  kind  of  frantic  humor, 
or  something  unaccountable  in  a  man's  actions,  that 
points  him  out  to  be  such  a  madman  as  is  exempted 
from  punishment ;  it  must  be  a  man  that  is  totally  de- 
prived of  his  understanding  and  memory,  and  doth 
not  know  what  he  is  doing,  no  more  than  an  infant, 
than  a  brute  or  wild  beast ;  such  a  one  is  never  the 
object  of  punishment."^ 

*  Maudsley,  Responsibility  in  Mental  Diseases,  p.  90. 


APPENDIX.  223 

In  R.  V.  James  Gibson,  tried  in  Edinburgh,  De- 
cember 23,  1844,  Lord  Justice  Clerk  Hope  directed 
the  jury  that  .  .  .  "the  disorder  must  amount  to  an 
absolute  alienation  of  reason."^ 

§  73.  iVb^  sure  that  it  is  not  more  necessary  to 
punish  a  madman  than  a  sane  man. 

In  Reg.  V.  Roberts,  1860,  the  prisoner  pleaded 
guilty,  and  Baron  Bramwell,  addressing  him,  said, 
"  That  you  are  of  unsound  mind  I  believe,  but  that  is 
no  reason  why  you  should  not  be  punished.  I  address 
the  explanation  of  the  reasons  why  I  pass  upon  you 
the  sentence  which  I  am  about  to  pronounce,  not  so 
much  to  your  understanding  as  to  those  around  who 
hear  me,  and  to  those  whose  duty  it  is  to  notice  them. 
The  law  makes  unsoundness  of  mind  no  excuse  for 
offences,  except  it  were  such  that  you  did  not  at  the 
same  time  know  the  nature  of  what  you  were  doing, 
and  that  it  was  wrong  and  unlawful.  No  doubt  it  is 
very  unfortunate  that  persons  of  unsound  mind  should 
become  by  that  affliction  less  under  the  influence  of 
moral  restraints  and  of  the  restraints  of  law ;  but  it 
would  be  sad  indeed  for  the  public  if,  when  those  re- 
straints are  weakened,  the  protection  of  the  law  were  to 

*  Taylor,  Med.  Juris.,  vol.  ii.  p.  592. 


224      MEDICO-LEGAL   KELATIONS   OF   INSANITY. 

be  withdrawn  by  tbe  extension  of  impunity  to  crime. 
I  am  not  sure  that  it  is  not  more  necessary  to  punish 
a  madman  than  a  sane  man,  so  far  as  the  protection 
of  the  public  is  concerned.  I  feel  bound  to  sentence 
you  to  the  same  punishment  as  if  you  were  sane."  ^ 

Punishment  of  the  Insane,  can  he  no  Warning  to 

Others. 

"  The  execution  of  an  offender  is,  for  example,  ut 
poena  ad  paucos,  metus  ad  omnes  perveniat;  but  so  it 
is  not  when  a  madman  is  executed,  but  should  be  a 
miserable  spectacle,  both  against  law,  and  of  extreme 
inhumanity  and  cruelty,  and  can  be  no  example  to 
others."  ^ 

§  74.  The  "Bight  and  Wrong"  Test  affirmed.  This 
legal  test  was  exphcitly  stated  in  the  following  terms 
by  the  whole  of  the  (English)  judges  in  conference, 
in  answer  to  queries  put  by  the  House  of  Lords  in  the 
case  of  McNaughton,  who  was  tried  and  acquitted  on 
the  ground  of  insanity  (June  19,  1843) :  "  Notwith- 
standing a  party  commits  a  wrong  act  while  laboring 
under  the  idea  that  he  was  redressing  a  supposed 
grievance  or  injury,  or  under  the  impression  of  obtain- 

1  Taylor,  Med.  Juris.,  vol.  ii.  p.  593.  '  4  Bl.  Com.,  24. 


APPENDIX.  225 

ing  some  public  or  private  benefit,  he  is  liable  to  pun- 
ishment. The  jury  ought  in  all  cases  to  be  told  that 
every  man  should  be  considered  of  sane  mind  until 
the  contrary  was  clearly  proved  in  evidence ;  that,  be- 
fore a  plea  of  insanity  should  be  allowed  undoubted 
evidence  ought  to  be  adduced  that  the  accused  was 
of  diseased  mind,  and  that  at  the  time  he  committed 
the  act  he  was  not  conscious  of  right  or  wrong. 
Every  person  was  supposed  to  know  what  the  law 
was,  and  therefore  nothing  could  justify  a  wrong  act, 
except  it  was  clearly  proved  that  the  party  did  not 
know  right  from  wrong ;  if  that  was  not  satisfactorily 
proved,  the  accused  was  liable  to  punishment.  If  the 
delusion  under  which  a  person  labored  were  only  par- 
tial,  the  party  accused  was  equally  liable  with  a  person 
of  sane  mind.  If  the  accused  killed  another  in  self- 
defence,  he  would  be  entitled  to  an  acquittal;  but  if 
the  crime  were  committed  for  any  supposed  injury,  he 
would  then  be  liable  to  the  punishment  awarded  by 
the  laws  to  his  crime."  ^ 

§  75.  The  English  Judged  Opinion  condemned. 
After  reviewing  the  answers  of  the  English  judges, 
Judge  Ladd  remarks,^  "  The  doctrine  thus  promul- 

^  Taylor,  Med.  Juris.,  vol.  ii.  p.  571. 
*  State  V.  Jones,  N.  II.,  p.  388. 
15 


226       MEDICO-LEGAL   RELATIONS   OF    INSANITY. 

gated  as  law  has  found  its  way  into  the  text-books, 
and  has  doubtless  been  largely  received  as  the  enun- 
ciation of  a  sound  legal  principle  since  that  day.  Yet 
it  is  probable  that  no  ingenious  student  of  the  law 
ever  read  it  for  the  first  time  without  being  shocked 
by  its  exquisite  inhumanity.  It  practically  holds  a 
man  confessed  to  be  insane,  accountable  for  the  exer- 
cise of  the  same  reason,  judgment,  and  controlling 
mental  power  that  is  required  in  perfect  mental  health. 
It  is,  in  effect,  saying  to  the  jury,  the  prisoner  was 
mad  when  he  committed  the  act,  but  he  did  not  use 
sufficient  reason  in  his  madness.  He  killed  a  man 
because,  under  an  insane  delusion,  he  falsely  believed 
the  man  had  done  him  a  great  wrong,  which  was 
giving  rein  to  a  motive  of  revenge,  and  the  act  is 
murder.  If  he  had  killed  a  man  only  because,  under 
an  insane  delusion,  he  falsely  believed  the  man  would 
kill  him  if  he  did  not  do  so,  that  would  have  been 
giving  the  rein  to  an  instinct  of  self-preservation,  and 
would  not  be  crime.  It  is  true  in  words  the  judges 
attempt  to  guard  against  a  consequence  so  shocking 
as  that  a  man  may  be  punished  for  an  act  which  is 
purely  the  offspring  and  product  of  insanity,  by  intro- 
ducing the  qualifying  phrase,  '  and  is  not  in  other  re- 
spects insane.'     That  is,  if  insanity  produces  the  false 


APPENDIX.  227 

belief,  which  is  the  prime  cause  of  the  act,  but  goes  no 
further,  then  the  accused  is  to  be  judged  according  to 
the  character  of  motives  which  are  presumed  to  spring 
up  out  of  that  part  of  the  mind  which  has  not  been 
reached  or  affected  by  the  delusion  or  the  disease. 
This  is  very  refined.  It  may  be  that  mental  disease 
sometimes  takes  a  shape  to  meet  the  provisions  of  this 
ingenious  formula;  or,  if  no  such  case  has  ever  yet 
existed,  it  is  doubtless  within  the  scope  of  Omnipotent 
power  hereafter  to  strike  with  disease  some  human 
mind  in  such  peculiar  manner  that  the  conditions  will 
be  fulfilled ;  and  when  that  is  done,  when  it  is  certainly 
known  that  such  a  case  has  arisen,  the  rule  may  be  ap- 
plied without  punishing  a  man  for  disease.  That  is, 
when  we  can  certainly  know  that  although  the  false 
belief  on  which  the  prisoner  acted  was  the  product  of 
mental  disease,  still  that  the  mind  was  in  no  other  way 
impaired  or  affected,  and  that  the  motive  to  the  act  did 
certainly  take  its  rise  in  some  portion  of  the  mind  that 
was  yet  in  perfect  health,  the  rule  may  be  applied  with- 
out any  apparent  wrong.  But  it  is  a  rule  which  can 
safely  be  applied  in  practice  that  we  are  seeking;  and 
to  say  that  an  act  which  grows  wholly  out  of  an  insane 
belief  that  some  great  wrong  has  been  inflicted,  is  at  the 
same  time  produced  by  a  spirit  of  revenge  springing 


228       MEDICO-LEGAL   KELATION"S   OF   INSANITY. 

from  some  portion  or  corner  of  the  mind  that  has  not 
been  reached  by  the  disease,  is  laying  down  a  patho- 
logical and  psychological  fact  which  no  human  intelli- 
gence can  ever  know  to  be  true,  and  which,  if  it  were 
true,  would  not  be  laiv,  but  pure  matter  of  fact.  No 
such  distinction  ever  can  or  ever  will  be  drawn  into 
practice;  and  the  absurdity  as  well  as  the  inhumanity 
of  the  rule  seems  to  be  sufficiently  apparent  without 
further  comment.  .  .  .  It  is  a  question  of  fact  whether 
any  universal  test  exists,  and  it  is  also  a  question  of 
fact  what  that  test  is,  if  any  there  be." 

§  76.  The  Total  Alienation  Test  is  discarded. 
Beardsley,  C.  J.,  said,^  "  A  state  of  general  insanity, 
the  mental  powers  being  wholly  perverted  or  obliterated, 
would  necessarily  preclude  a  trial ;  for  a  being  in  that 
deplorable  condition  can  make  no  defence  whatever. 
Not  so,  however,  where  the  disease  is  partial,  and  con- 
fined to  one  subject,  other  than  the  imputed  crime  and 
contemplated  trial.  ...  In  the  case  at  bar  the  court 
professed  to  furnish  a  single  criterion  of  sanity,  that 
is,  a  capacity  to  distinguish  between  right  and  wrong. 
This,  as  a  test  of  insanity,  is  by  no  means  invariably 
correct;  for,  while  a  person  has  a  very  just  perception 


^  Freeman  v.  People,  4  Denio,  p.  27. 


APPENDIX.  229 

of  the  moral  qualities  of  most  actions,  lie  may  at  the 
same  time,  as  to  some  one  in  particular,  be  absolutely 
insane,  and  consequently  as  to  this  be  incapable  of 
judging  accurately  between  right  and  wrong.  If  the 
delusion  extends  to  the  alleged  crime  or  the  contem- 
plated trial,  the  party  manifestly  is  not  in  a  fit  condi- 
tion to  make  his  defence,  however  sound  his  mind 
may  be  in  other  respects ;  still  the  insanity  of  such  a 
person  being  only  partial,  not  general,  a  jury,  under  a 
charge  like  that  given  by  the  court  below  on  this  case, 
might  find  the  prisoner  sane,  for  in  some  respects  he 
would  be  capable  of  distinguishing  between  right  and 
wrong.  Had  the  instruction  been,  that  the  prisoner 
was  to  be  deemed  sane,  if  he  had  a  knowledge  of  right 
and  wrong  in  respect  to  the  crime  with  which  he  stood 
charged,  there  would  have  been  but  little  fear  that  the 
jury  could  be  misled,  for  a  person  who  justly  appre- 
hends the  nature  of  a  charge  made  against  him,  can 
hardly  be  supposed  to  be  incapable  of  defending  him- 
self in  regard  to  it  in  a  rational  way.  .  .  .  Where  in- 
sanity is  interposed  as  a  defence  to  an  indictment  for 
an  alleged  crime,  the  inquiry  is  always  brought  down 
to  the  single  question  of  a  capacity  to  distinguish 
between  right  and  wrong  at  the  time  when  the  act 
was  done.  .  .  .  The  act,  in  my  judgment,  must  be 


230      MEDICO-LEGAL   RELATIONS   OF   INSANITY. 

an  insane  act,  and  not  merely  the  act  of  an  insane 
person." 

Tlie  Word  "Power"  comprises  the  True  Test. 

Judge  Brewster,  speaking  for  the  judges  of  the 
Philadelphia  Common  Pleas,  said,  in  1868,^  "The 
true  test  in  all  these  cases  lies  in  the  word  '  power.' 
Has  the  defendant  in  a  criminal  case  the  power  to 
distinguish  right  from  wrong,  and  the  power  to  ad-^ 
here  to  the  right  and  avoid  the  wrong  ?" 


Did  He  hiow  that  the  Act  was  forbidden  by  the 

Lawf 

§  77.  Lord  Brougham  said,^  "  If  the  perpetrator 
knew  what  he  was  doing ;  if  he  had  taken  the  precau- 
tion to  accomj^lish  his  purpose;  if  he  knew  at  the  time 
of  doing  the  desperate  act,  that  it  was  forbidden  by  the 
law,  that  was  his  test  of  sanity ;  he  cared  not  what 
judge  gave  another  test;  he  should  go  to  his  grave  in 
the  belief  that  it  was  the  real,  sound,  and  consistent 
test." 


1  Wharton  and  Still6,  Med.  Juris.,  §  159. 

»  Bennett  and  Heard,  Leading  Criminal  Cases,  2d  Ed.,  pp.  101-2. 


APPENDIX.  231 

3Iusi  know  the  Offence  to  be  contrary  to  the  Laws  of 
God  a\id  Nature. 

Lord  Lyndliurst,  in  1831,  said/  "  Tlie  question 
was,  did  he  know  it  was  an  offence  against  the  laws 
of  God  and  nature  ?" 

Burden  of  Proof  on  the  Accused,  and  Insanity  must 
be  proved  beyond  a  Doubt. 

Sir  James  Mansfield  (not  Lord  Mansfield),  in  Bel- 
lingham's  case,  5  Carrington  and  Payne,  169,  note, 
applied  this  test  in  the  most  general  form  to  a  pris- 
oner indicted  for  murder.  "  In  order  to  support  such 
a  defence,"  said  he,^  "  it  ought  to  be  proved  by  the 
most  distinct  and  unquestionable  evidence  that  the 
prisoner  was  incapable  of  judging  between  right  and 
wrong ;  in  fact,  it  must  be  proved  beyond  all  doubt, 
that  at  the  time  he  committed  the  atrocious  act  with 
which  he  stood  charged,  he  did  not  consider  that  mur- 
der was  a  crime  against  the  laws  of  God  and  nature ; 
and  that  there  was  no  other  proof  of  insanity  luhich 
would  excuse  murder  or  any  other  crime  ;  that  in  the 


^  Bennett  and  Heard,  Leading  Criminal  Cases,  2d  Ed.,  p.  102. 
2  Ibid.,  p.  102. 


232      MEDICO-LEGAL   RELATIONS   OF   INSANITY. 

species  of  madness  called  '  lunacy'  persons  are  subject 
to  temporary  paroxysms,  in  which  they  are  guilty  of 
acts  of  extravagance ;  such  persons  committing  crimes 
when  they  are  not  affected  by  the  malady,  would  be, 
to  all  intents  and  j)urposes,  amenable  to  justice ;  and 
that  so  long  as  they  could  distinguish  good  from  evil, 
they  would  be  answerable  for  their  conduct ;  and  that 
in  the  sj^ecies  of  insanity  in  which  the  patient  fancies 
the  existence  of  injury,  and  seeks  an  opportunity  of 
gratifying  revenge  by  some  hostile  act,  if  such  a  per- 
son is  capable  in  other  respects  of  distinguishing  right 
from  wrong,  there  would  be  no  excuse  for  any  act  of 
atrocity  which  he  might  commit  under  this  description 
of  derangement." 

§  78.  The  ''Eight  and  Wrong  Test''  modified. 
Tindal,  C.  J.,  affirms  the  "  right  and  wrong"  test,  but 
restricts  it  to  the  act  in  question.  In  "Regina  v. 
Yaughan,"  1  Cox,  C.  C,  80,  he  said,^  "It  was  not 
mere  eccentricity  or  singularity  of  manner  that  will 
suffice  to  establish  tlie  plea  of  insanity ;  it  must  be 
shown  that  the  prisoner  had  no  competent  use  of  his 
understanding,  so  as  to  know  that  he  was  doing  a 
wrong  tiling  in  the  particular  act  in  question." 


^  Bennett  and  Heard,  Leading  Criminal  Cases,  2d  Ed.,  p.  103. 


APPENDIX.  233 

"  Right  and  Wrong'''  Test  further  modified. 

Parke,  B.,  in  Kegina  v.  Barton,  3  Cox,  C.  C,  275, 
told  tlie  jury  "there  was  but  one  question  for  their 
consideration,  viz. :  Whether  at  the  time  the  prisoner 
inflicted  the  wounds  which  caused  the  death  of  his 
wife,  he  was  in  a  state  of  mind  to  be  made  responsible 
to  the  law  for  her  murder.  That  would  depend  upon 
the  question  whether  he,  at  the  time,  knew  the  nature 
and  character  of  the  deed  he  was  committing,  and 
if  so,  whether  he  knew  he  was  doing  wrong  in  so 
acting."^ 

§  79.  "  Uncontrollable  Impulse''^  does  not  relieve 
from  Responsibility.  In  "Regina  v.  Pate,"  tried 
before  Baron  Alderson,  in  1850,  the  learned  judge 
said,^  "  It  is  not  because  a  man  is  insane  that  he  is 
unpunishable ;  and  I  must  say  that  upon  this  point 
there  exists  a  very  grievous  delusion  in  the  minds  of 
medical  men.  The  only  insanity  which  excuses  a 
man  for  his  acts,  is  that  species  of  delusion  which 
conduced  to,  and  drove  him  to  commit  the  act  alleged 
against  him.  The  jury  ought  to  have  clear  proof  of 
a  formed  disease  of  the  mind,  a  disease  existing  before 

^  Bennett  and  Heard,  Leading  Criminal  Cases,  2d  Ed.,  p.  104. 
*  Ibid.,  pp.  104-5. 


234       MEDICO-LEGAL   EELATIONS   OF   INSANITY. 

tlie  act  was  committed,  and  wliicli  made  tlie  accused 
incaj^able  of  knowing  at  tlie  time  that  it  was  a  wrong 
act  for  him  to  do.  The  law  does  not  acknowledge 
the  doctrine  of  an  uncontrollable  impulse,  if  the  p)er- 
S071  was  aware  it  was  a  wrong  act  he  was  about  to 
commit." 

In  Regina  v.  Burton,  3  Foster  and  Finlayson,  780, 
Wightman,  J.,  said,^  "  A  man  is  responsible  for  his 
actions  if  he  knows  the  difference  between  right  and 
wrong.  A  state  of  mind  under  which  a  man,  per- 
fectly aware  that  it  was  wrong  to  do  so,  kills  another 
under  an  uncontrollable  imj)ulse  is  no  defence  for  a 
crime." 

§  80.  Uncontrollable  Impulse  does  relieve  from 
Responsibility.  In  the  Supreme  Court  of  Pennsyl- 
vania, 1846,  Gibson,  C.  J.,  said,^  "  But  there  is  a  moral 
or  homicidal  insanity,  consisting  of  an  irresistible  in- 
clination to  kill  or  to  commit  some  particular  offence. 
There  may  be  an  unseen  ligament  pressing  on  the 
mind,  drawing  it  to  consequences  which  it  sees  but 
cannot  avoid,  and  placing  it  under  a  coercion  which, 
while  its  results  are  clearly  perceived,  is  incaj^able 
of  resistance.     The  doctrine  which  acknowledges  this 

^  Bennett  and  Heard,  Leading  Criminal  Cases,  2d  Ed.,  p.  105. 
*  Wharton  and  StilI6,  Med.  Juris.,  vol.  i.  §  157. 


APPENDIX.  235 

mania  is  dangerous  in  its  relations,  and  can  be  recog- 
nized only  in  the  clearest  cases."  ^ 

If  the  Act  was   done  under   "  Uncontrollable   Im- 
pulsCj^  it  was  not  his  Act,  and  he  is  not  responsible. 

In  tlie  Commonwealth  v.  Rogers,  tried  in  1844, 
Shaw,  C.  J.,  said,^  "  In  order  to  constitute  a  crime  a 
person  must  have  intelligence  and  capacity  enough  to 
have  a  criminal  intent  and  purpose ;  and  if  his  reason 
and  mental  powers  are  either  so  deficient  that  he  has 
no  will,  no  conscience,  or  controlling  mental  power,  or 
if,  through  the  overwhelming  violence  of  mental  dis- 
ease, his  intellectual  power  is  for  the  time  obliterated, 
he  is  not  a  responsible  moral  agent,  and  is  not  j^unish- 
able  for  criminal  acts. 

"  But  these  are  extremes  easily  distinguished  and 


^  If  the  learned  judge  is  correctly  reported,  it  is  to  be  presumed  that 
his  legal,  was  much  more  accurate  than  either  his  psychical,  or  anatom- 
ical knowledge.  A  ligament  pressing  on  the  mind,  id  est,  a  physical 
pressure  on  that  which  has  neither  extension  nor  place,*  and  is  an 
incorporeal,  intangible  entity,  requires  explanation ;  and  if  the  brain, 
the  sometimes  reputed  seat  of  the  mind,  is  intended,  an  explanation 
la  still  required,  as  there  are  no  ligaments  in  the  brain. 

^  Bennett  and  Ileard,  Leading  Criminal  Cases,  2d  Ed.,  pp.  96,  97. 


*  Sir  William  Hamilton's  Lectures  on  Metaphysics,  p.  356. 


236      MEDICO-LEGAL   RELATIONS   OF   INSANITY. 

not  to  be  mistaken.  The  difficulty  lies  between  these 
extremes  in  the  cases  of  partial  insanity,  where  the 
mind  may  be  clouded  and  weakened,  but  not  incapa- 
ble of  remembering,  reasoning,  and  judging,  or  so 
perverted  by  insane  delusion,  as  to  act  under  false 
impressions  and  influences.  In  these  cases  the  rule 
of  law,  as  we  understand  it,  is  this  :  a  man  is  not  to 
be  excused  from  responsibility  if  he  has  capacity  and 
reason  sufficient  to  enable  him  to  distinguish  between 
right  and  wrong  as  to  the  particular  act  he  is  then 
doing ;  a  knowledge  and  consciousness  that  the  act  he 
is  doing  is  wrong  and  criminal,  and  will  subject  him 
to  punishment.  In  order  to  be  responsible  he  must 
have  sufficient  power  of  memory  to  recollect  the  rela- 
tion in  which  he  stands  to  others,  and  in  which  others 
stand  to  him ;  that  the  act  he  is  doing  is  contrary  to 
the  plain  dictates  of  justice  and  right,  injurious  to 
others,  and  a  violation  of  the  dictates  of  duty.  On 
the  contrary,  although  he  may  be  laboring  under  j)ar- 
tial  insanity,  if  he  still  understands  the  nature  and 
character  of  his  act  and  its  consequences ;  if  he  has  a 
knowledge  that  it  is  wrong  and  criminal,  and  a  men- 
tal power  sufficient  to  apply  that  knowledge  to  his 
own  case,  and  to  know  that  if  he  does  the  act  he  will 
do  wrong  and  receive  punishment;  such  partial  in- 


APPENDIX.  237 

sanity  is  not  sufficient  to  exempt  liim  from  responsi- 
bility for  criminal  acts.  If,  then,  it  is  proved,  to  the 
satisfaction  of  tlie  jury  that  the  mind  of  the  accused 
was  in  a  diseased  and  unsound  state,  the  question  will 
be,  whether  the  disease  existed  to  so  high  a  degree 
that  for  the  time  being  it  overwhelmed  the  reason, 
conscience,  and  judgment,  and  whether  the  prisoner, 
in  committing  the  homicide,  acted  from  an  irresistible 
and  uncontrollable  impulse.  If  so,  then  the  act  was 
not  the  act  of  a  voluntary  agent,  but  the  involuntary 
act  of  the  body,  without  the  concurrence  of  a  mind 
directing  it." 

§  81.  Moral  Insanity  {mania  sine  delirio)  relieves 
from  Responsibility.  In  the  Court  of  Appeals  of 
Kentucky,  1864,  Robertson,  J.,  said,^  "Moral  insanity 
is  now  as  well  understood  by  medico-jurists,  and  almost 
as  well  established  by  judicial  recognition,  as  the  in- 
tellectual form.  Mentally,  man  is  a  dualism,  consist- 
ing of  an  intellectual  and  a  moral  nature.  .  .  .  No 
enlightened  jurist  now  doubts  the  existence  of  such  a 
type  of  moral,  contradistinguished  from  intellectual 
insanity  as  homicidal  mania,  or  morbid  and  uncon- 
trollable appetite  for  man-killing ;  and  pyromania,  or 

^  "Wharton  and  Still6,  Med.  Juris.,  g  175, 


238      MEDICO-LEGAL   EELATIONS   OF   INSANITY. 

tlie  like  passion  for  Louse-burning ;  kleptomania,  or 
an  irresistible  inclination  to  kill"  (steal  ?)...."  But 
if  liis  insanity  extend  no  further  than  a  morbid  per- 
version and  preternatural  power  of  insane  passion,  or 
emotion,  he  not  •  only  knows  '  right  from  wrong,'  but 
knows  also  that  the  act  he  is  impelled  to  do  is  forbid- 
den by  both  moral  and  human  law."  And  in  1869 
the  same  judge  took  occasion  further  to  enforce  these 
views :  ^  "  According  to  matured  philosophy  and  the 
corroborating  authority  of  elementary  writers,  such  as 
Prichard  and  Esquirol  and  Kay  and  Taylor,  and  of 
many  modern  adjudications,  both  British  and  Ameri- 
can, there  may  be  moral  as  well  as  intellectual  insan- 
ity, and  essentially  distinguished  from  it.  .  .  .  While 
the  senses  are  apparently  sound  and  true,  the  affections 
may  be  perverted,  or  the  moral  sentiments  unhinged 
in  such  a  degree  as  to  subjugate  the  ivill  to  some 
morbid  appetite  or  ungovernable  passion,  and  thus  pre- 
cipitate against  the  will  insane  but  conscious  wrong. 
This  is  contradistinctively  called  moral  insanity." 

§  82.  Moral  Insanity  {mania  sine  delirio)  does  not 
relieve  from  Responsibility.  Against  the  above  opinion 
Williams,  C.  J.,  said,^  "In  all  the  vague,  uncertain, 

1  Wharton  and  Still6,  Med.  Juris.,  §  177.  ^  Ibid.,  §  178. 


APPENDIX.  239 

intangible,  and  undefined  theories  of  the  most  imprac- 
ticable metaphysician  in  psychology  or  moral  insanity, 
no  court  of  last  resort  in  England,  or  America,  so  far 
as  has  been  brought  to  our  knowledge,  ever  before 
announced  such  startling,  irresponsible,  and  danger- 
ous propositions  of  law  as  that  laid  down  in  the  infe- 
rior court.  For  if  this  be  law,  then  no  longer  is  there 
any  responsibility  for  homicide,  unless  it  be  perpetrated 
in  calm,  cool,  considerate  condition  of  mind." 


"Moral  Inmnity'^  does  not  relieve  from  Responsi- 
bility. 

Thurman,  J.,^  "  There  is  no  authority  for  holding  A 
that  mere  moral  insanity,  as  it  is  sometimes  called,  J 
exonerates  from  resj3onsibility." 

§  83.  Burden  of  Proof  of  Insanity  on  the  Accused, 
and  must  be  established  beyond  Reasonable  Doubt, 
Rolph,  B.,  in  "  Kegina  v.  Stokes,"  3  Carrington  and 
Kirwan,  188,  says,^  "  If  the  prisoner  seeks  to  excuse 
himself  upon  the  plea  of  insanity,  it  is  for  him  to 
make  it  clear  that  he  was  insane  at  the  time  of  com- 


*  Wharton  and  Still6,  Med.  Juris.,  vol.  i.  p.  158. 

*  Bennett  and  Heard,  Leading  Criminal  Cases,  p.  129. 


240       MEDICO-LEGAL   BELATIONS   OF   INSANITY. 

mitting  the  offence  cliarged.  The  onus  rests  on  him, 
and  the  jury  must  be  satisfied  that  he  was  actually 
insane.  If  the  matter  be  left  in  doubt  it  will  be  their 
duty  to  convict." 

The  Proof  of  Insanity  to  acquit  ought  to  be  as  strong 
as  that  of  Guilt  to  convict. 

In  the  State  v.  Spencer,  1  Zabriskie,  202,  Horn- 
blower,  C.  J.,  said,  with  some  emphasis,^  "  Where  it 
is  admitted,  or  clearly  proved,  that  the  prisoner  com- 
mitted the  act,  but  it  is  insisted  that  he  was  insane, 
and  the  evidence  leaves  the  question  of  insanity  in 
doubt,  the  jury  ought  to  find  against  him.  The  j)roof 
of  insanity  at  the  time  of  committing  the  act,  ought  to 
be  as  clear  and  satisfactory,  in  order  to  acquit  a  pris- 
oner on  the  ground  of  insanity,  as  proof  of  commit- 
ting the  act  ought  to  be,  in  order  to  find  a  sane  man 
guilty." 

§  84.  Burden  of  Proof  on  the  State,  and  the  State 
must  prove  Sanity  beyond  a  Reasonable  Doubt.  In 
the  Illinois  Supreme  Court,  1863,  Fisher  v.  People, 
23  111.,  283,  it  was  held  that^  "sound  mind  is  pre- 


^  Bennett  and  Heard,  Leading  Criminal  Cases,  p.  130. 
2  Wharton  and  Still6,  Med.  Juris.,  I  159. 


APPENDIX.  241 

sumed  if  tJie  accused  is  neither  an  idiot,  lunatic,  nor 
affected  with  insanity.  If  he  be  insane,  sound  mind 
is  wanting  and  the  crime  is  not  established,  therefore 
the  burden  is  on  the  state  to  establish  sanity,  and  not 
upon  the  prisoner  to  show  insanity." 

TJie  Ingredients  of  an  Offence  cannot  be  separated^ 
therefore,  after  a  Presumption  of  Insanity  has  been 
raised,  Sanity  must  be  proved  by  the  State. 

In  the  People  v.  Garbutt,  1868,  17  Mich.,  9, 
Cooley,  C.  J.,  said,  "The  prosecution  takes  upon  itself 
the  burden  of  establishing  not  only  the  killing,  but  also 
the  malicious  intent  in  every  case.  There  is  no  such 
thing  in  the  law  as  a  separation  of  the  ingredients 
of  the  offence,  so  as  to  leave  a  part  to  be  established 
by  the  prosecution,  while  as  to  the  rest  the  defendant  ■ 
takes  upon  himself  the  burden  of  proving  a  negative. 
The  idea  that  the  burden  of  proof  shifts  in  these  cases 
is  unphilosophical,  and  at  war  with  fundamental  prin- 
ciples of  criminal  law.  The  presumption  of  innocence 
is  a  shield  to  the  defendant  throughout  the  proceed- 
ings, until  the  verdict  of  the  jury  establishes  the  fact 
.  that  beyond  a  reasonable  doubt  he  not  only  committed 
the  act,  but  that  he  did  so  with  malicious  intent.  .  .  . 

16 


242       MEDICO-LEGAL   KELATIONS   OF   INSANITY. 

Tliey  (the  prosecution)  are  at  liberty  to  rest  upon  the 
presumption  of  sanity  until  2:)roof  of  the  contrary 
condition  is  given  by  the  defence.  But  when  any 
evide;ice  is  given  which  tends  to  overthrow  that  pre- 
sumption, the  jury  are  to  examine,  weigh  and  pass 
upon  it  with  the  understanding  that  although  the 
initiative  in  presenting  the  evidence  is  taken  by  the 
defence,  the  burden  of  proof  upon  this  part  of  the 
case,  as  well  as  upon  the  other,  is  upon  the  prosecution 
to  establish  the  conditions  of  guilt." 

§  85.  Preponderance  of  Evidence  of  Insanity  will 
acquit.  In  the  Commonwealth  v.  Rogers,  referred 
to,  §  80,  in  answer  to  a  question  by  the  jury,  the 
learned  judge  stated^  "  that  if  the  preponderance  of 
the  evidence  was  in  favor  of  the  insanity  of  the  pris- 
oner, the  jury  would  be  authorized  to  find  him  insane." 

§  86.  A  Reasonable  Doubt  as  to  Insanity  ought  to 
acquit.  In  the  trial  of  Daniel  E.  Sickles,  United 
States  Court  for  the  District  of  Columbia,  1859,  for 
the  murder  of  Philip  B.  Key,  Crawford,  J.,  said,'^ 
"Whether  a  man  is  insane  or  not  is  a  matter  of  fact; 
Avhat  degree  of  insanity  will  relieve  him  from  respon- 


^  Bennett  and  Heard,  Leading  Criminal  Cases,  p.  100. 
*  Wliarton  and  Stills,  Med.  Juris.,  vol.  i.  pp.  144-45. 


APPENDIX.  243 

sibility  is  a  matter  of  law,  tlie  jury  finding  the  fact 
of  tlie  degree  too.  Under  the  instruction  of  the  court 
murder  can  be  committed  only  by  a  sane  man.  Every- 
body is  presumed  to  be  sane  who  is  charged  with  a 
crime,  but  when  evidence  is  adduced  that  a  prisoner 
is  insane,  and  conflicting  testimony  makes  a  question 
for  the  jury,  they  are  to  decide  it  like  every  other 
matter  of  fact,  and  if  they  should  say,  or  conclude 
that  there  is  uncertainty,  that  they  cannot  determine 
whether  the  defendant  was  or  is  not  so  insane  as  to 
protect  him,  how  can  they  render  a  verdict  that  a  sane 
man  perpetrated  this  crime  and  that  no  other  can  ? 
Nor  is  this  plain  view  of  the  question  unsupported  by 
authority.  In  the  case  of  the  Queen  v.  Ley,  in  1840, 
Lewins,  C.  C,  p.  239,  on  a  preliminary  trial  to  ascer- 
tain whether  a  defendant  was  sufficiently  sane  to  go 
before  a  petit  jury  on  an  indictment,  Hullock,  B., 
said  to  the  jury,  '  If  there  be  a  doubt  as  to  the  pris- 
oner's sanity,  and  the  surgeon  says  it  is  doubtful,  you 
cannot  say  he  is  in  a  fit  state  to  be  put  on  trial.'  This 
opinion  was  approved  in  The  People  v.  Freeman,  vol. 
iv.,  Denio's  Keport,  p.  9.  This  is  a  strong  case,  for 
the  witness  did  not  say  the  prisoner  was  insane,  but 
only  that  it  was  doubtful  whether  it  was  so  or  not. 
The  humane  and,  I  will  add,  just  doctrine  that  a  rea- 


244      MEDICO-LEGAL   RELATIONS   OF   INSANITY. 

sonable  doubt  should  avail  a  prisoner,  belongs  to  a 
defence  of  insanity  as  mucli,  in  my  opinion,  as  to  any 
otlier  matter  of  fact." 

Doe,  J.,  says,^  "  Whether  in  this  case  the  de- 
fendant had  an  insane  impulse  to  kill  his  wife,  and 
whether  he  could  resist  it,  are  questions  of  fact. 
Whether  an  act  may  be  produced  by  partial  in- 
sanity when  no  connection  can  be  discovered  between 
the  act  and  the  disease,  is  a  question  of  fact.  The 
defendant  is  to  be  acquitted  on  the  ground  of  insanity 
unless  the  jury  are  satisfied  beyond  a  reasonable 
doubt  that  the  killing  was  not  produced  by  mental 
disease." 

§  87.  Insanity  a  Question  of  Fact  to  be  determined 
by  the  Jury,  not  a  Question  of  Law  to  be  decided  by 
Judges.  In  the  State  v.  Pike,  49  N.  H.,  399,  tried 
in  187' >,  Perley,  C.  J.,  and  Doe,  J.,  instructed  the 
jury  that  "  whether  there  w^as  such  a  mental  disease 
as  *  dipsomania' "  (which  was  the  defence  urged) , 
"and  whether  the  defendant  had  that  disease,  and 
whether  the  killing  of  Brown  was  the  product  of  such 
disease,  were  questions  of  fact  for  the  jury,"^  which 


^  Wharton  and  Stille,  Med.  Juris.,  I  108. 
« Ibid.,  §  190. 


APPENDIX.  245 

was  affirmed  in  tlae  Supreme  Court,  Smith,  J.,  say- 
ing,^ "  This  was  correct.  If  there  are  any  diseases 
whose  existence  is  so  much  a  matter  of  history  and 
general  knowledge  that  the  court  may  properly  as- 
sume it  in  charging  a  jury,  dij^somania  certainly  does 
not  fall  within  that  class.  The  court  do  not  profess  to 
have  the  qualifications  of  medical  experts.  Whether 
there  is  such  a  disease  as  dipsomania  is  a  question  of 
science  and  fact,  not  of  law."  Supporting  the  same 
view.  Doe,  J.,  said,  "...  Whether  it  is  a  possible 
condition  in  nature  for  a  man,  knowmg  the  wrongful- 
ness of  an  act  to  be  rendered  by  mental  disease  inca- 
pable of  choosing  not  to  do  it  and  of  not  doing  it,  and 
whether  a  defendant  in  a  particular  instance  has  been 
thus  incapacitated,  are  obviously  questions  of  fact. 
But  whether  they  are  questions  of  fact  or  of  law, 
when  an  expert  testifies  that  there  may  be  such  a 
condition,  and  that  upon  personal  examination  he 
thinks  the  defendant  is,  or  was,  in  such  a  condition — 
that  his  disease  has  overcome,  or  suspended,  or  tem- 
porarily or  permanently  obliterated  his  capacity  of 
choosing  between  a  known  right  and  a  known  wrong 
— and  the  judge  says  that  knowledge  is  the  test  of 

1  Wharton  and  Still6,  Med.  Juris.,  ^  191. 


246      MEDICO-LEGAL   EELATIONS   OF   INSANITY. 

capacity,  the  judge  flatly  contradicts  the  expert.  Either 
the  expert  testifies  to  law,  or  the  judge  testifies  to  fact. 
From  this  dilemma  the  authorities  afibrd  no  escape. 
The  whole  difiiculty  is,  that  courts  have  undertaken  to 
declare  that  to  be  law  which  is  a  matter  of  fact."  And 
in  Messrs.  Wharton  and  Stille,  §  108,  the  same  judge 
is  reported  to  have  charged  the  jury,  that  "  if  the  de- 
fendant killed  his  wife  in  a  manner  that  would  be 
criminal  and  unlawful  if  the  defendant  were  sane,  the 
verdict  should  be  not  guilty  by  reason  of  insanity, 
if  the  killing  was  the  offspring  or  'product  of  men- 
tal disease  in  the  defendant.  Neither  delusion  nor 
knowledge  of  right  and  wrong,  nor  design  or  cunning 
in  planning  and  executing  the  killing  and  escaping 
or  avoiding  detection,  nor  ability  to  recognize  ac- 
quaintances, or  to  labor,  or  transact  business,  or  man- 
age affairs  is  as  matter  of  law  a  test  of  mental  dis- 
ease ;  but  all  symptoms  and  all  tests  of  mental  disease 
are  purely  matters  of  fact  to  be  determined  by  the 
jury." 

§  88.  Medical  Opinions  claiming  Insanity  to  be 
a  Disease  declared  vicious.  Lord  Chancellor  West- 
bury,  in  the  House  of  Lords,  declared  on  the  11th 
day  of  March,  1862,  that  "  the  introduction  of  medi- 
cal opinions  and  medical  theories  into  this  subject  has 


APPENDIX.  247 

proceeded  upon  the  vicious  principle  of  considering 
insanity  as  a  disease."^ 

§  89.  Legal  Gentlemen  'profoundly  ignorant  of 
Mental  Disease.  Doe,  J.,  said/  "  The  legal  profession, 
in  profound  ignorance  of  mental  disease,  have  assailed 
the  superintendents  of  asylums,  who  knew  all  that 
was  known  on  the  subject,  and  to  whom  the  world 
owes  an  incalculable  debt,  as  visionary  theorists  and 
sentimental  philosophers,  attempting  to  overturn  set- 
tled principles  of  law ;  whereas,  in  fact,  the  legal  pro- 
fession were  invading  the  province  of  medicine  and 
attempting  to  install  old  exploded  medical  theories  in 
the  place  of  facts  established  in  the  progress  of  scien- 
tific knowledge." 

§  90.  Expert  Testimony  valueless.  In  Regina  v. 
Leander  (Cent.  Crim.  Court,  June,  1864),  Bram- 
well,  B.,  said,^  "Although  medical  men  were  often 
heard  in  courts  of  justice  to  define  insanity,  he 
thought  ordinary  men  of  the  world  were  just  as  well 
qualified  to  form  an  opinion  on  these  matters  as  they 
were." 


1  Hansard,  clxv.  1297. 

2  State  V.  Pike,  49  N.  II.,  399. 

'  Taylor,  Med.  Juris.,  vol.  ii.  p.  477. 


248       MEDICO-LEGAL   KELATIONS   OF   INSANITY. 

Expert  Testimony  not  only  valueless,  bat  worse  than 

that. 

Davis,  J.,  of  tlie  Supreme  Court  of  Maine,  went  so 
far  as  to  say,^  "  If  there  is  any  kind  of  testimony  that 
is  not  only  of  no  value,  but  even  worse  than  that,  it 
is,  in  my  judgment,  that  of  medical  experts.  They 
may  be  able  to  state  the  diagnosis  of  a  disease  more 
learnedly,  but  upon  the  question  whether  it  had,  at  a 
given  time,  reached  such  a  stage  that  the  subject  of  it 
was  incapable  of  making  a  contract  or  irresponsible 
for  his  acts,  the  opinion  of  his  neighbors,  if  men  of 
good  common  sense,  would  be  worth  more  than  that 
of  all  the  experts  in  the  country." 

§  91.  Expert  Testimony  of  great  value.  Ladd,  J., 
in  State  v.  Jones,  in  1871,  said,^  "  I  may  add  that  it 
confirms  me  in  the  belief  that  we  are  right,  or  at  least 
have  taken  a  step  in  the  right  direction,  to  know  that 
the  view  embodied  in  this  charge  meets  the  approval 
of  men  who,  from  great  experience  in  the  treatment  of 
the  insane,  as  well  as  careful  and  long  study  of  the 
phenomena   of  mental   disease,   are   infinitely  better 


1  Wharton  and  Still6,  Med.  Juris.,  g  294. 

2  Ibid.,  p.  192. 


APPENDIX.  249 

qualified  to  judge  in  tlie   matter  than  any  court  or 
lawyer  can  be." 

Testimony  of  Experts  Competent  Evidence  and  en- 
titled to  great  respect. 

In  the  Commonwealth  v.  Eogers,  1844,  Shaw, 
C.  J.,  said,^  "  The  opinions  of  professional  men  on  a 
question  of  this  description  are  competent  evidence, 
and  in  many  cases  are  entitled  to  great  consideration 
and  respect.  The  rule  of  law  on  which  this  proof  of 
the  opinion  of  witnesses,  who  know  nothing  of  the 
actual  facts  of  the  case,  is  founded,  is  not  peculiar  to 
medical  testimony,  but  is  a  general  rule,  ajDplicable  to 
all  cases  where  the  question  is  one  depending  on  skill 
and  science  in  any  particular  department.  In  gen- 
eral, it  is  the  opinion  of  the  jury  which  is  to  govern, 
and  this  is  to  be  formed  upon  the  proof  of  facts  laid 
before  them.  But  some  questions  lie  beyond  the 
scope  of  the  observation  and  experience  of  men  in 
general,  but  are  quite  within  the  observation  and  ex- 
perience of  those  whose  peculiar  pursuits  and  profes- 
sion have  brought  that  class  of  facts  frequently  and 
habitually  under  their  consideration.  ...  A  familiar 


"^ 


^  Bennett  and  Heard,  Leading  Criminal  Cases,  pp.  98,  99. 


250       MEDICO-LEGAL   KELATIONS   OF   INSANITY. 

instance   of  the  application   of  this  principle  occurs 
very  often  in  cases  of  homicide,  when,  upon  certain 
facts  being  testified  to  by  other  witnesses,  medical  per- 
sons are  asked  whether,  in  their  opinion,  a  particular 
wound   described   would    be   an   adequate    cause,  or 
whether  such  wound  was,  in  their  opinion,  the  actual 
cause  of  the  death  in  the  particular  case.   Such  question 
is  commonly  asked  without  objection ;  and  the  judi- 
cial proof  of  the  fact  of  killing  often  depends  wholly  or 
mainly  upon  such  testing  of  opinion.     It  is  upon  this 
ground  that  the  opinions  of  witnesses  who  have  long 
been  conversant  with  insanity  in  its  various  forms, 
and  who  have  had  the  care  and  superintendence  of 
insane  persons,  are   received  as  competent  evidence, 
even  though  they  have  not  had  oj^portunity  to  ex- 
amine the  particular  patient,  and  observe  the  sym|)- 
toms   and  indications   of  disease  at  the  time  of  its 
supposed  existence.     It  is  designed  to  aid  the  judg- 
ment of  the  jury  in  regard  to  the  influence  and  effects 
of  certain  facts  which  lie  out  of  the  observation  and 
experience  of  persons  in  general.    And  such  opinions, 
when  they  come  from  persons  of  great  experience,  and 
in  whose  correctness  and  sobriety  of  judgment  just 
confidence  can  be  had,  are  of  great  weight,  and  de- 
serve the  respectful  consideration  of  the  jury." 


INDEX. 


Acquittal  or  conviction  a  matter  of  chance  (Maudsley),  13. 
Acquittal  or  conviction  a  matter  of  accident  (Taylor),  14 
Allotropes  and  isomers,  88. 

Ambiguity  in  defining  the  "intermediate  theory,"  91. 
Amendments  to  the  law  recommended,  171. 

(a)  appointment  of  State  examining  boards,  171. 

(b)  appointment  of  United  States  examining  boards,  172. 

(c)  experts  not  to  receive  pay  for  giving  evidence,  172. 

(d)  an  expert  to  be  considered  amicus  curice,  172. 

(e)  United  States  and  States  relative  to  experts'  services,  173. 
(/)  plea  of  insanity,  173,  174,  175. 

benefits  expected  from  the  "amendments,"  175,  et  seq. 
Antidotes  to  deliriauts  restore  reason,  56. 

B. 

Belief  in  "spiritualism"  not  evidence  of  insanity,  213. 

may  be  regarded  as  undue  influence,  213. 
Beliefs  undemonstrable,  the  existence  of  the  chemical  atom,  71. 

the  origin  of  mind  or  matter,  71. 
Benefits  expected  from  proposed  "amendments"  : 

thoroughly  competent  and  trustworthy  experts,  175. 

much  greater  certainty  of  just  verdicts,  175. 

(1)  experts  impartial — rich  and  poor  equally  served,  176. 

(2)  large  saving  of  time  and  expense,  176. 

(3)  experts  free  from  local  bias,  177. 

(4)  official  responsibility  a  guarantee  of  expert's  fidelity,  177. 

the  expert  being  unpaid,  and  amicus  curice,  would  be  impartial,  177. 

uniformity  of  expert  opinions,  191. 
Body  and  mind,  connection  of  (Bain),  49. 
Body,  the  importance  of,  39. 
Brain,  average  weight  of,  65. 

if  less  than  thirty  ounces,  the  person  an  imbecile,  64. 

indispensable  to  thought,  feeling,  and  volition  (Bain),  52. 

inflammation  of,  subordinates  the  mind,  53. 

251 


252  INDEX. 

Brain,  post-mortem  examination  of,  56,  57,  58,  59. 

the  largest  recorded  weight  of,  65. 

the  organ  of  mind,  63,  66. 
Brothers,  twin,  judge  and  expert,  204. 

C. 

Calderwood,  Professor,  on  hrain  the  organ  of  mind,  06,  67,  68. 
Cause  of  death  not  always  revealed  by  post-mortem  examination,  68. 
Causes  of  uncertainty  of  verdicts  in  insanity  trials,  15. 

allowing  unskilled  persons  to  testify  as  experts,  25. 

defective  definitions  of  insanity,  16,  17,  18. 

defective  and  contradictory  legal  tests,  19-24. 

introduction  of  "hypothetical  cases,"  150. 

nature  of  insanity  misapprehended,  16. 

want  of  uniformity  in  the  rulings  of  courts,  221,  et  seq. 
Cerebral  disintegration  not  proof  that  mind  is  a  function  of  the  brain,  74. 

does  not  determine  which  is  "  precedent"  or  "  consequent,"  74. 

the  product  of,  74. 
Changes  in  the  law,  those  opposed  to,  197. 
Chapman,  C.  J.,  disparages  expert  testimony,  124,  125. 

who  is  to  blame  ?  124. 
Character,  how  much  depends  on  heredity  ?  40. 

(Maudsley),  40. 
Christianity,  the  truth  of,  depends  on  the  resurrection  of  the  body,  39. 
Colleges,  medical,  give  little  or  no  instruction  in  insanity,  126,  127. 
Conclusion,  217. 

theoretically  admitted,  hut  practically  denied,  129. 
Consciousness,  our  own,  no  proof  to  others,  39. 
Contradictory  ruling  of  courts,  summary  of,  24. 
Corollary  arising  from  the  physical  nature  of  insanity,  72. 
Courts,  admirably  constituted,  why  uncertainty  of  verdict  ?  15, 
Criteria  should  be  stable,  fixed  quantities,  27. 

of  insanity,  contradictory,  cannot  all  be  right,  180,  188. 

D. 

Define,  they  can  best,  who  best  understand  the  subject,  186. 
Definition  of  disease,  45. 
hypothesis,  98. 
theory,  98. 
insanity,  Webster,  Worcester,  16. 

Cullen,  Abernethy,  Combe,  Connoly,  Locke,  17. 
Guislam,  Lelut,  Marc,  Morel,  17. 
Copland,  Taylor,  18. 
Buckham,  72. 


INDEX.  253 

Deliriants,  effect  of,  on  the  mind,  55. 

Delusions,  insane,  removable  only  by  medical  treatment,  68. 

Depositions,  experts',  to  be  a  part  of  the  records  of  trials,  176. 

Design  and  scope  of  this  work,  15,  16. 

Disease,  definition  of,  45. 

how  does  it  affect  the  mind  ?  46. 
of  the  brain  affects  the  mind,  53. 
media,  Dr.  Luys'  view  of,  46. 
mind,  so-called,  really  physical,  67. 
a  misnomer,  66. 

medication  of,  absurd  and  irrational,  44. 
optic  nerve,  42. 

organs  of  sensation  cause  disordered  ideas,  42. 
our  ideas  of,  derived  from  decay  in  the  physical  world,  46. 
Disgrace,  insanity  formerly  considered  to  be  a,  25,  133. 
Drunkenness  does  not  relieve  from  responsibility,  112. 

E. 

Effects  of  variable  legal  criteria,  29,  218. 

Established,  "  intermediate  theory"  should  have  been,  91. 

Eucharist,  evidence  furnished  by  the,  31. 

Evidence,  conclusive  test  of  its  trustworthiness,  71. 

direct,  of  insanity  by  experts,  reasons  against,  141,  192,  et  seq. 
reasons  for,  140,  et  seq.,  192,  et  seq. 

no  direct  or  primary,  that  we  have  a  mind.  38. 

of  antidotes  to  deliriants,  56. 

of  deliriants  administered,  55. 

of  long-continued  use  of  deliriants,  56. 

of  physical  diseases  producing  insane  ravings,  etc.,  51-55. 

of  the  dead,  56-66. 

of  the  physical  manifestation  of  mental  emotions,  49. 

prima  facie,  not  conclusive  proof,  48. 

unifurmity  of  expert,  confidently  expected,  195,  215,  217. 

unskilled  expert,  necessarily  untrustworthy,  25,  123. 
Experience  the  aggregation  of  sensations,  42. 
Expert  and  judge,  twin  brothers,  204. 

an,  may  differ  from  the  body  of  experts,  215. 

definition  of,  121. 

methods  of  harmonizing,  196,  213,  215,  217. 

opinions,  methods  for  obtaining,  192,  206. 

or  judge,  who  shall  decide?  165,  et  seq. 

special,  not  general  knowledge  constitutes  an,  123,  127. 
Experts,  argitmentum  ab  inconvenienti  of  Wharton  and  Stille  consid- 
ered, 164. 


254  INDEX. 

Experts,  as  by  the  amended  law  herein  recommended,  171,  195. 
are  worthy  of  any  trust  within  their  sphere,  199. 
best  mode  of  deposing  or  giving  testimony,  207. 
can  only  determine  by  continued  personal  observation,  149,  156,  160. 
cannot  be  criticised,  after  testifying,  by  other  experts,  168. 
contradictory  rulings  of  courts  concerning,  222-250. 
court  assuming  the  province  of,  dangerous,  166-169. 
detect  with  certainty,  54. 
do  not  determine  responsibility,  147,  161. 
double  explanation  by  judge  and,  193. 
eminent,  know  all  that  is  known  of  the  subject,  128. 
general  medical  practitioners  are  not,  25,  123,  125. 
generally  required  to  trace  relations  of  effects,  192. 
have  often  testified  that  legal  tests  are  untrustworthy,  137. 
how  remunerated,  172. 

ignored  when  unskilled  evidence  is  allowed,  160. 
in  insanity  not  graduated  from  medical  colleges,  126. 
medical  superintendents  of  insane  asylums  are,  137. 
no  necessity  now  for  using  unskilled,  122. 
of  what  use  are,  if  legal  tests  decide  the  matter?  148,  206. 
only,  can  determine  some  forms  of  insanity,  149. 
plan  for  always  securing  reliable,  171. 
properly  qualified,  should  be  exclusively  used,  123,  126. 
proposed  changes  in  the  law  regarding,  171,  172. 
should  be  required  to  furnish  proof  of  qualifications,  131. 
should  depose  directly  to  prisoner's  mental  condition,  156,  175. 
so-called,  their  opinions  irreconcilable,  208. 
their  duty  to  the  court  and  jury,  193. 

to  attend  court  for  examination  and  cross-examination,  175. 
to  be  used  as  interpreters,  178. 
unotEcial  persons  should  not  be,  in  insanity,  170. 
unskilled,  cannot  give  trustworthy  evidence,  125. 
using  unskilled,  pernicious,  124,  130,  138,  160. 
what  they  say  will  have  to  be  explained  by  the  court  ("Wharton  and 

Stille),  192. 
who  are?  121,  126,171. 
who  are  i-espousible  for  using  unskilled  ?  123,  129,  130. 


E. 

False  imprisonment,  actions  would  be  frequent  if  legal  tests  were  in- 
voked, 188. 
by  some  rulings  of  courts,  conviction  almost  impossible,  189. 
Eevers  and  inflammations  subordinate  the  mind,  53. 


INDEX.  255 

Freedom  of  will  denied  by  somatists,  40,  75-79. 
somatic  view  examined,  77,  et  seq, 

G. 

Galileo  lived  in  advance  of  his  time,  28. 
Guiteau  trial,  reference  to,  157,  et  seq. 

H. 

Hamilton,  Sir  "William,  mind  materialized  when  assigned  place  and  ex- 
tension, 110. 
Harmonizing  opinions  of  a  small  number  easier  than  that  of  a  large 
number,  209. 

courts  and  experts,  importance  of,  208. 

courts,  if  there  is  a  mode,  its  enforcement  has  been  neglected,  185. 

experts  easier  than  of  non-experts,  209. 

experts,  no  coH7't  for,  but  there  is  an  organizatioji  for,  209,  212,  213. 

experts,  without  cost  or  trouble  to  suitors  or  the  State,  212,  214. 
Harmony,  conspicuous  want  of,  in  rulings  of  courts,  181,  et  seq.,  221- 
250. 

want  of,  between  civil  and  criminal  law,  194,  195. 
Heredity  charged  with  the  destinies  of  mankind  (Maudsley),  75,  76. 

eflbrts  to  obtain  reliable  data  concerning,  80,  81. 

its  absolute  control  of  character  denied,  77,  et  seq. 

its  influence  on  the  formation  of  character  (Maudsley),  75,  76. 

somatic  view  of,  examined,  77,  78,  79,  84,  et  seq. 

weighs  on  a  man  through  life  as  a  .  .  .  fate  (Maudsley)',  76. 
Homceopathy,  American  Institute  of,  212. 
Hypothetical  cases  do  not  furnish  data  for  positive  expert  opinions,  153. 

misleading  and  absurd,  149,  et  seq. 

prepared  by  lawyers  who  are  interested,  154. 

prepared  by  lawyers  who  are  not  experts,  151. 

prepared  delibej'ately,  and  sprung  on  the  other  side,  155. 

prepared  on  unskilled  observation,  151. 

prepared,  sometimes  adroitly,  by  aid  of  experts,  154. 

utter  worthlessness  of,  shown  in  Guiteau  trial,  159,  160. 


Ideas,  our,  dependent  on  our  organs  of  sensation,  41. 
disordered,  due  to  disorder  of  the  sensorium,  42. 
Identity  and  resemblance  are  not  alike,  150. 

Inconsistency  of  Wharton  and  Stille's  position  on  "uniformity,"  179- 
196,  208-217. 


256  INDEX. 

Insane  asylums,  practical  evidence  of  their  value,  70. 

thousands  improperly  kept  in,  if  legal  tests  are  trustworthy,  187. 
Insane  persons  would  be  protected,  220. 

Insanity,  all  degrees  and  phases  of,  affirmed  and  denied  by  the  courts  as 
relieving  from  responsibility,  221-250. 

a  manifestation  or  effect  of  physical  disease,  35,  et  seq.,  72,  147. 

a  matter  of  science  and  of  fact,  not  of  law,  193,  244r-246. 

a  physical  disease,  no  legal  tests  possible,  185. 

a  specialty  on  any  theory,  199. 

all  degrees  of,  between  slight  aberrations  and  maniacal  ravings,  149. 

belief  in  spiritualism  not  evidence  of,  213. 

can  courts  and  lawyers  diagnose?  187. 

cannot  be  demonstrated  a  physical  disease,  71. 

considered  a  demoniacal  possession,  hence  a  disgrace,  25,  133. 

defences,  in  criminal  trials,  155,  173,  et  seq. 

definitions  of,  by  Webster,  Worcester,  16. 

Locke,  Cullen,  Abernethy,  Combe,  Connoly,  Guislam,  Lelut, 

Marc,  Morel,  17. 
Copland,  Taylor,  18. 
Buckham,  72. 

disordered  mental  manifestations  caused  by  physical  disease,  43. 

former  view  of,  25,  133. 

Guiteau  trial,  reference  to,  157,  et  seq. 

if  a  matter  of  fact  in  civil,  why  not  in  criminal  trials?  190. 

if  cured,  it  is  by  removing  disease  from  the  "  jDhysical  media,"  45. 

if  legal  tests  determine,  of  what  use  are  experts  ?  148,  206. 

legal  tests  of,  221-250. 

legal  tests,  summary  of,  19-24. 

lucid  intervals  in  some  forms  of,  156. 

"moral."     See  "Moral  insanity." 

must  be  either  a  physical  or  mental  disease,  107. 

partial,  cannot  be  reconciled  with  metaphysical  theory,  46,  48. 

plea  of,  would  not  be  Improperly  used,  219. 

prima  facie  evidence  of  diseased  mind,  48. 

some  forms  of,  can  be  determined  only  by  experts,  149. 

some  forms  cannot  be  easily  mistaken,  148. 

the  most  complex  of  medical  specialties,  128. 

those  who  cannot  diagnose,  ought  not  to  treat  a  case,  187. 

those  who  determine,  diagnose  the  case,  186. 

those  who  know  most  of  a  subject  should  define  it,  186. 

what  is  it?  16,  72. 

who  know  most  of,  lawyers  or  experts  ?  186. 
Intermediate  theory.     See  "Theory,  intermediate." 
Isomers  and  allotropes,  88. 


INDEX.  257 

J. 

Judges'  opinions,  extracts  from  : 

Must  know  no  more  than  an  infant,  a  brute,  or  a  wild  beast  (Tra- 
cey,  J.),  222. 

The  disorder  must  amount  to  absolute  alienation  of  reason  (Lord 
Justice  Clerk  Hope),  223. 

Not  sure  that  it  is  uot  more  necessary  to  punish  a  madman  than  a 
sane  man,  as  a  warning  to  others  (Bramwell,  B.),  223. 

The  execution  of  a  madman  is  of  extreme  inhumanity  and  cruelty, 
and  can  be  no  warning  to  others  (Sir  Edward  Coke),  224. 

The  "right  and  wrong"  test  affirmed  (English  judges  in  confer- 
ence), 224. 

The  English  judges'  opinion  condemned  and  declared  to  be  exquis- 
itely inhumane,  and  absurdly  impracticable  (Ladd,  J.),  225. 

The  total  alienation  test  discarded ;  the  act  must  be  an  insane  act, 
not  merely  the  act  of  an  insane  person  (Beardsley,  C.  J.),  228. 

The  test  lies  in  the  word  power  ;  could  he  distinguish  right  from 
wrong,  and  had  he  power  to  do  right  and  avoid  wrong  ?  (Brews- 
ter, J.),  230.       > 

Did  he  know  that  the  act  was  forbidden  by  the  law?  (Lord 
Brougham),  230. 

Did  he  know  it  was  an  offence  against  God  and  nature  ?  (Lord 
Lyndhurst),  231. 

Burden  of  proof  on  the  accused,  and  insanity  must  be  proved  be- 
yond a  doubt  (Sir  James  Mansfield),  231. 

The  "right  and  wrong"  test  affirmed,  but  restricted  to  the  act  in 
question  (Tindal,  C.  J.),  232. 

The  "right  and  wrong'  test  further  modified  to  the  time  the  crime 
was  committed  (Parke,  B.),  233. 

"  Uncontrollable  impulse"  does  not  relieve  from  responsibility 
(Alderson,  B.),  233. 

"Uncontrollable  impulse"  does  not  relieve  from  responsibility 
(Wightman,  J.),  234. 

"  Uncontrollable  impulse"  does  relieve  from  responsibility  (Gib- 
son, C.  J.),  234. 

If  the  act  was  done  under  "  uncontrollable  impulse,"  it  was  not  his 
act,  and  he  is  not  responsible  (Shaw,  C.  J.),  235. 

"  Moral  insanity"  relieves  from  responsibility  (Robertson,  J.),  237. 

"  Moral  insanity"  does  not  relieve  from  responsibility  (Williams, 
C.  J.),  238. 

"  Moral  insanity"  does  not  relieve  from  responsibility  (Thurman, 
J.),  239. 

Burden  of  proof  on  the  accused,  and  insanity  must  be  established 
beyond  a  reasonable  doubt  (Rolph,  B.),  239. 
17 


258  INDEX. 

Judges'  opinions,  extracts  from  (continued)  : 

Proof  of  insanity  to  acquit  should  be  as  strong  as  that  of  guilt  to 

convict  (Hornblower,  C.  J.),  240. 
Burden  of  proof  on  the  State,  and  sanity  must  be  proved  beyond  a 

reasonable  doubt  (Illinois  Supreme  Court),  240. 
Burden  of  proof  on  the  State,  and  sanity  must  bo  proved  as  well  as 

guilt,  after  a  presumption  of  insanity  has  been  raised  (Cooley, 

C.J.),  241. 
Preponderance  of  evidence  of  insanity  will  acquit  (Shaw,  C.  J.),  242. 
A  reasonable  doubt  as  to  insanitj-  ought  to  acquit  (Crawford,  J.), 

242. 
If  there  be  a  doubt  as  to  the  prisoner's  sanity,  you  cannot  say  he  is 

in  a  fit  state  to  be  put  on  trial  (HuUock,  B.),  243. 
Acquit  on  the  ground  of  insanity  unless  satisfied  that  the  killing 

was  not  produced  by  mental  disease  (Doe,  J.),  244. 
Insanity  a  question  of  fact  to  be  determined  by  the  jury,  not  a  ques- 
tion of  law  to  be  decided  by  judges  (Perley,  C.  J.),  244. 
All  tests  of  mental  disease  are  purely  matters  of  fact  to  be  deter- 
mined by  the  jury  (Doe,  J.),  246. 
Medical  opinions  claiming  insanity  to  be  a  disease  declared  vicious 

(Lord  Chancellor  Westbury),  246. 
Legal  gentlemen  profoundly  ignorant  of  mental  diseases  ;  medical 

experts  know  all  that  is  known  on  the  subject  (Doe,  J.),  247. 
Expert  testimony  valueless  (Bramwell,  B.),  247. 
Expert  testimony  not  only  valueless,  but  worse  than  that  (Davis, 

J.),  248. 
Expert  testimony  of  great  value  (Ladd,  J.),  248. 
Expert  testimony  competent  evidence,  and  entitled  to  great  respect 

(Shaw,  C.  J.),  249. 
summary  of,  19-24. 
Judges  should  not  testify  regarding  insanity  if  it  is  a  question  of  fact, 

138. 
their  probity  and  ability  unquestioned,  15. 
Judiciary,  general  satisfaction  with  (excepting  insanity  trials),  15. 
loss  of  confidence  in,  a  nation's  greatest  calamity,  14. 
possibly  to  some  extent  unintentionally  misrepresented,  180. 
Junius  on  precedents,  132. 

sarcasm  worthy  of,  182,  227. 
Jurors,  none  more  intelligent  than  American  citizens,  15. 

L. 

Ladd,  Judge,  review  of  "opinion"  of  English  judges  in  conference, 

181,  225. 
Law,  apology  for  existing  ("Wharton  and  Stille),  162, 


INDEX.  259 

Law,  brouglit  into  conflict  with  itself,  138,  246. 

change  of  the  pe>-sonnel  of  a  State  Supreme  Court  may  change  the, 

184. 
changes  in  the,  recommended,  170,  et  seq. 

if  insanity  be  a  question  of,  experts  should  not  testify  to  it,  138. 
necessary  amendments  to  the,  should  be  made  promptly,  164. 
relating  to,  has  not  kept  pace  with  the  growth  in  knowledge  of,  in- 
sanity, 25. 
that  cannot  be  health  in,  which  is  disease  in  fact,  180. 
the,  has  declared  the  insane  irresponsible,  147,  161,  162. 
the  principles  of,  eternal,  but  may  have  been  misunderstood,  163. 
urgent  reasons  for  changing  the,  163,  218,  et  seq. 
why  not  amend  the  ?  162. 
Lawyers  able,  judges  upright,  jurors  trustworthy,  why  are  verdicts  un- 
certain ?  15. 
have  given  as  legal  tests  exploded  medical  theories,  136,  247. 
have  no  proper  qualifications  for  preparing  "  hj-pothetical  cases," 

151. 
may  not  desire  "the  whole  truth"  from  experts,  206. 
profoundly  ignorant  of  insanity,  have  invaded  the  domain  of  ex- 
perts, 247. 
Lewes,  examination  of  "physical  theory"  of  thought,  judgment,  etc., 

84. 
Liberty  of  citizens  outraged  if  legal  tests  of  insanity  are  true,  187,  188. 
Ligament  pressing  on  the  mind  ?  {foot-note),  235. 
Lucid  intervals  in  insane  persons,  156. 
Luys,  Dr.,  minute  examination  of  the  brain,  60,  61. 
on  skilled  observation,  152. 

M. 

Mania  a  potu,  the  law  relating  to,  discussed,  112,  et  f^eq. 
Mania,  general,  in,  the  assumptions,  not  the  reasoning  defective,  48, 156. 
Media,  diseased,  produce  disordered  mental  manifestations,  42. 
part  healthy  and  part  diseased,  in  partial  insanity,  46. 
Physical,  Theory,  35,  et  seq. 
Medical  Association,  American,  design  of,  and  how  constituted,  210,  et 
seq. 
reference  to,  of  "  expert  testimony,"  128,  213. 
"moral  insanity,"  212. 
"physical  media  theory,"  213. 
"spiritualism,"  213. 
Medical  experts  know  all  that  is  known  of  insanity,  128,  247. 
proposed  plan  for  always  obtaining  trustworthy,  171,  et  s&q. 


260  INDEX. 

"  Medical  Superintendents  of  American  Institutions   for  the  Insane, 

Association  of,"  216. 
Men  live  before,  with,  or  after  their  own  times,  28. 
Mental  disease,  so-called,  as  truly  physical  as  disease  of  the  eye  or  ear 
67. 

when  applied  to  insanity,  a  misnomer,  66. 
Mental  manifestations  conditioned  upon  cerebral  disintegration,  74. 

Dr.  Luys's  opinion  concerning,  104. 

Dr.  Maudsley's  opinion  concerning,  103. 
Mental  power,  all  degrees  of,  from  imbecility  to  that  of  a  Newton,  149. 

none,  when  there  is  less  than  thirty  ounces  of  brain,  64,  65. 
Mind  and  body  must  be  united  to  be  legally  responsible,  36. 

a  sound,  in  a  sound  body,  45. 

a  unit,  indivisible,  therefore  must  be  all  sane  or  all  insane,  45,  110. 

disease,  so-called,  removable  only  by  medical  treatment,  68. 

diseased,  a  misnomer,  44. 

disordered  manifestations  of,  are  called  diseases  of  the  mind,  44. 

how  is  it  aftected  by  disease  ?  46. 

if  a  function  of  the  brain,  free  will  is  impossible,  75,  76. 

if  dependent  on  the  body  for  health,  why  not  for  existence?  102, 

if  diseased,  medication  of  it  irrational  and  absurd,  44. 

if  it  can  be  diseased,  under  certain  circumstances  it  must  die,  44. 

if  independent  of  the  body,  weight  of  brain  of  no  importance,  66. 

influenced  by  disease  of  the  body,  51,  52. 

knowing  nothing  of,  per  se,  how  ascertain  its  disorders  ?  126. 

no  direct  or  primary  evidence  that  we  have  a,  38. 

no  evidence  that  it  ever  is,  or  can  be,  diseased,  45. 

per  se,  we  know  nothing  of,  37. 

psychical  or  metaphysical  view  of,  35,  93,  110. 

somatic  or  materialistic  view  of,  39. 

subordinated  by  physical  diseases,  53,  et  seq. 
Moral  insanity,  authoritative  opinion  regarding,  212. 
Mutability  of  the  "  ordinary  rule  of  society  test,"  27,  et  seq. 

N. 

No  unreasonableness  of  belief,  nor  extravagance  in  conduct  or  behavior, 
is  alone  conclusive  evidence  of  insanity,  31,  38. 

O. 

Observation,  defective,  of  the  past  classed  insanity  as  a  mental  disease, 

133,  247. 
Opinions  respecting  definitions  of  insanity  (Taylor,  and  Wharton  and 
Stille),  26. 
unsound,  will  not  be  rendered  sound  by  repetition,  133. 


INDEX.  261 

Opposites,  between,  there  can  be  no  intermediate,  100. 
Opposition  to  innovations  so  called  (Drs.  Harvey,  Jenner,  and  Simp- 
son), 197,  198. 
Ordinary  rule  of  society  test  examined,  27,  et  seq. 


Partial  insanity  due  to  dissociation  of  vital  forces  of  cerebral  activity, 
46. 

impossible  if  the  mind  is  a  unit,  46,  48. 
People,  the,  have  little  confidence  in  verdicts  in  insanity  trials,  15. 
Physicians  are  not  usually  "  society  men,"  30. 

do  not  make  dlfl'erential  diagnoses  from  prominent  symptoms,  153. 

general,  are  not  experts  in  insanity,  123-128. 

knowledge  necessary  to  graduation,  125. 

their  qualifications,  duties,  responsibilities,  etc.,  200-204. 
Post-mortem  examinations  do  not  always  reveal  the  cause  of  death,  68, 

methods  employed,  57-62. 

not  satisfactory  sometimes  from  lack  of  knowledge,  68. 

of  the  brains  of  insane  persons,  62,  63. 
Precedents  as  afl^ecting  experts,  196. 

and  legal  maxims  with  reference  to  insanity  incorrect,  198. 

legal,  how  developed,  132,  136. 

some  of,  are  obsolete  medical  hypotheses,  133,  136. 
study  of,  instead  of  the  principles  that  underlie  them,  133. 
President  of  the  United  States,  who  might  have  been  ?  184. 
Probate,  judges  of,  practice  in  insanity  cases,  194. 

may  be  ignorant  of  both  law  and  insanity,  195. 
Profession,  difficulty  of  one  fairly  representing  the  views  of  another, 

180. 
Professional  portals,  those  who  guard  against  innovations,  197. 
Psychological  view  of  mind,  35,  92,  110. 

Q. 

Qualification  of  medical  superintendents  of  insane  asylums,  137. 
Quotations  from  "Wharton  and  Stillo's  Medical  Jurisprudence  {foot  of 
pages),  92-98,  139-146. 

K. 

Keasons  for  considering  "psychical"  and  "physical  media"  theories 
together,  34. 
examining  chiefly  "Wharton  and  Stille's  Medical  Jurisprudence,  33. 
quoting,  chiefly  from  Maudsley's  works,  when  considering  the  "so- 
matic theory,"  75. 
Remuneration  to  State  for  experts'  services,  173. 


262  INDEX. 

Eesearclies  of  Clarte,  Van  der  Kolk,  Luys,  et  al.,  58-62. 
Eesponsibility,  what  constitutes  ?     See  "  Judges'  opinions." 

gravity  of  the,  the  strongest  reason  for  transferring  it  to  experts 

200. 
if  there  were  no,  who  would  decide  questions  of  sanity  ?  144. 
may  be  safely  imposed  upon  experts,  199. 
none,  without  a  mind  to  will  and  a  body  to  execute,  36. 
not  created  by  the  changes  recommended,  199. 
on  whom  rests  the,  of  allowing  non-experts  to  testify  ?  130. 
the  expert  in  testifying  does  not  directly  include  the  question  of,  147. 
there  are  no  trustworthy  legal  tests  of  insanity  with  regard  to,  72, 

246. 
what  phase  or  degree  of  insanity  has  not  been  held  to  relieve  from  ? 

24. 

S. 

Science  has  proved  that  insanity  is  a  physical,  not  a  mental  disease,  42, 
43. 

that  which  is  false  in,  cannot  be  true  in  law,  180. 
Scientific  demonstrations  may  sometimes  mislead,  87. 
Scope  and  design  of  this  work,  15. 
Sensations,  Professor  Calderwood's  view  of,  41. 

organs  of  transmission  must  be  healthy  to  convey  normal,  42. 
Skilled  observation  necessary  to  a  correct  diagnosis,  150,  et  seq. 

mental  processes  involved  in,  152. 
Soldier,  exempted  from  serving  as,  indirectly  by  surgeon's  testimony, 

162. 
Somatic  theory  denies  the  freedom  of  the  will,  75,  76. 

diifers  from  physical  media  theory,  73,  74. 

general  principles  of,  considered,  73,  et  seq. 

its  view  of  free  will  examined,  77,  et  seq. 

more  properly  called  an  hypothesis  than  a  theory,  87,  88. 

Wharton  and  Stille's  view  of  {foot-note^,  92,  96. 
Some  forms  of  mental  disorder  unquestionably  produced  by  physical 

disease,  54. 
Some  persons  improperly  acquitted  on  the  plea  of  insanity,  others  un- 
justly executed,  14. 
Sometimes  the  less  insane  person  escapes,  while  the  more  insane  person 

is  hanged,  14. 
Spencer,  Herbert,  on  the  constitution  of  mind,  37. 
Special,  not  general  knowledge  constitutes  the  expert,  123,  127. 
Specialists,  eminent,  know  all  that  is  known  of  their  specialty,  128. 
Specialties,  why  necessary  in  the  medical  profession,  127,  128. 
Specialty  of  insanity  the  most  complex,  127. 
Spiritualism,  belief  in,  not  evidence  of  insanity,  213. 


INDEX.  263 

Summary  of  contradictory  rulings  of  courts  in  insanity  trials,  19-24. 
Superintendents  of  insane  asylums,  their  qualifications,  etc.,  69,  177. 
Supreme  Courts,  changing  one  number  of,  might  change  the  law,  184. 
System,  not  the  individual  or  the  office,  that  is  censured,  179. 


T. 

Test  for  determining  the  truth  of  an  undemonstrable  proposition,  71. 

"  ordinary  rule  of  society,"  examined,  27-33. 
Testator,  proposed  plan  for  determining  sanity  of,  177. 
Tests,  legal,  moral,  or  intellectual,  cannot  be  framed  of  a  physical  dis- 
ease, 26,  179,  227,  228. 
Tests  of  insanity,  if  any  were  possible,  judges  would  have  found  them 
ere  now,  185. 
prejudge  the  facts,  and  partially  withdraw  them  from  the  jury,  190. 
there  are  none  that  have  not  been  affirmed  and  denied  by  courts,  183. 
there  cannot  be  two  contradictory,  and  both  correct,  180,  194. 
should  in  the  law  substitute  the  test  for  the  term  "insanity,"  148. 
why  not  invoked  in  civil  cases  ?  190. 
Theory,  an  unverified,  cannot  be  used  to  prove  any  proposition,  82,  83, 
90. 
atomic,  91. 

cast-off  medical,  of  the  past  should  not  now  be  a  legal  maxim,  136. 
definition  of,  98. 

physical,  of  the  origin  of  thought  examined,  84,  85,  86. 
Theory  of  evolution,  assumptions  necessary,  83. 

objections  to  its  being  considered  a  "  theory,"  82. 
should  properly  be  designated  an  "  hypothesis,"  not  a  "  theory,"  87. 
"  spontaneous  generation"  and  "  transmutation  of  species"  unveri- 
fied, 83. 
used  to  prove  the  somatic  theory,  81. 
Theory,  intermediate,  what  its  authors  claim  for  it  {foot-note),  92-98. 
The  claims  examined  : 

ambiguity  of  enunciation  and  definition,  101,  et  seq. 
conclusions  reached,  106,  107,  118. 
danger  from  inexactness  in  enunciating,  97. 
deficient  in  certainty  and  stability,  99. 

does  not  remove  the  chief  difficulties  from  criminal  responsibil- 
ity, 108. 
if  insanity  is  a  mental  disease,  then  at  variance  with  their 

§  336,  108. 
if  insanity  is  a  physical  disease,  it  accords  with  the  "somatic 

theory,"  107,  108. 
insanity  must  be  either  a  mental  or  a  physical  disease,  107. 


264  INDEX. 

Theory,  intermediate,  its  claims  examined  (continued) , 
name  a  misnomer,  99,  et  seq. 
no  "intermediate"  between  opposite  or  unconnected  extremes, 

100. 
no  proof  that  the  body  can  originate  mental  disease,  101. 
"organic  type"  of  disease  applied  to  an  indivisible  unit  inex- 
plicable, 109, 
remarkable  claims,  unexplained  and  unverified,  101,  102. 
the  mind  made  dependent  upon  the  body  for  health  and  exist- 
ence, 102. 
uncertainty  of  scope,  102,  107,  109. 
Theory,  physical  media,  evidence  in  favor  of,  35,  et  seq. 

adaptability  for  removing  medico-legal  difficulties,  49, 108. 
brain  changes  affecting  the  mind,  51.        ^ 

subordinating  the  mind,  53. 
medical  superintendents  of  insane  asylums,  69, 
mental  impressions  affecting  the  body,  52. 
partial  insanity,  46,  48. 

physical  expression  of  mental  emotions,  49,  50,  51. 
recapitulation,  72. 
the  brain,  weight  of,  64-66. 
the  dead,  56-66.  . 

the  effects  of  antidotes  to  deliriants,  56. 
the  effects  of  deliriants,  55. 

the  fact  that  we  know  of  mind  only  by  its  manifestations,  38. 
the  medication  of  the  insane,  44. 
Theory,  psychical  or  metaphysical,  35,  92,  110. 
its  conception  of  mind,  100. 
impracticable  when  applied  to  insanity,  107. 
Therapeutics,  practical  system  of,  somatic  theory  fails  in  supporting 
(Wharton  and  Stllle),  92, 
proposition  examined,  105,  et  seq. 
supports  ])hysical  media  theory,  106. 
Tuke  and  Kutherford,  report  of  post-mortem  examinations,  63. 

U. 

Uncertainty  of  verdicts.     See  "  Causes  of  uncertainty." 

Unconnected  subjects  have  no  intermediate,  100. 

Unskilled  observers  note  only  prominent  symptoms,  151,  et  seq. 


Van  der  Kolk,  report  of  post-mortem  examinations,  62. 
Yerdicts,  "  a  matter  of  chance"  (Maudsley),  13 


INDEX.  265 

Verdicts,  "a  mere  matter  of  accident"  (Taylor),  14. 

uncertainty  of,  in  insanity  trials.     See  "  Causes  of  uncertainty." 
uncertainty  of,  in  insanity  trials,  may  be  removed,  220. 

W. 

Why  are  physicians  required  to  testify  as  experts  if  insanity  is  not  a 

disease  ?  30. 
Witchcraft,  trials  for,  29. 

Witnesses,  an  array  of,  on  either  side  of  a  case,  130. 
Witnesses,  experts.     See  "Experts." 


THE    END. 


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